Singh v. Ashcroft

Decision Date27 August 2002
Docket NumberNo. 01-70505.,01-70505.
Citation301 F.3d 1109
PartiesBaljit SINGH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Ashwani K. Bhakhri, Burlingame, CA, for the petitioner-appellant.

John D. Williams, DOJ, Washington, DC, for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A76-841-588.

Before LAY,** FERGUSON and TALLMAN, Circuit Judges.

Opinion by Judge FERGUSON; Dissent by Judge TALLMAN.

OPINION

FERGUSON, Circuit Judge.

Baljit Singh ("Singh"), a native and citizen of India, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his application for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(b). We conclude that the BIA erred in affirming the Immigration Judge's ("IJ") adverse credibility determination because any inconsistencies in Singh's testimony were either minor or not contradictory.

I. BACKGROUND
A. Facts1

Singh is a 32-year-old native of the Punjab region in India. He is a citizen of India and a follower of the Sikh religion. He has a wife and two children, all of whom remain in India. While in India, Singh worked as a farmer. He has received a formal education through the tenth grade.

In April 1992, Singh joined the Akali Dal Mann party (the "Party"), a political organization campaigning for an independent Khalistan. Singh's activities with the Party included putting up posters, collecting donations, and transporting people to and from Party rallies.

On June 6, 1995, Singh was arrested at his home by eight to ten Punjab police officers after attending a political rally organized by the Party. Singh was taken into custody and transported to the Samarala police station. Singh's hands and feet were bound, and he was beaten and burned on the arms by officers. At the deportation hearing, Singh exhibited what appeared to be burn marks on his arms and testified that, during the beating, the police officers said to him, "Son of dog, we'll give you Khalistan." Singh was never brought before a judge or magistrate. Singh was released three days later, after his father paid a bribe of 40,000 rupees. Singh was admitted to a hospital, where his injuries were treated for two weeks under the care of Dr. Gursharan Singh. At the deportation proceedings, Singh submitted a letter from Dr. Singh corroborating his hospitalization and treatment, and noting the "injuries to [Singh's] lips, nose, feet, and groin."

After the beating, Singh initially refrained from participating in any political activities. However, he resumed his active support of the Party a year later, at the urging of a friend. On January 26, 1997, Singh was transporting people back to their village following a political rally when he was informed that police officers were waiting to arrest him at his home. Singh fled to avoid arrest, first staying with an aunt in Gangoorakot for eight days, then with a relative in Nupee for five months, then with another relative in Boonbikoda. Singh later returned in disguise to his home village for two days because he heard that his wife was ill and in the hospital. One week later, he departed from Delhi and eventually entered the United States without admission in September 1997.

B. Procedural History

On December 2, 1997, Singh applied for asylum and withholding of removal to the Immigration and Naturalization Service ("INS"). On February 6, 1998, the INS issued a Notice to Appear, alleging that, under Section 212(a)(6)(A)(i) of the Immigration and Naturalization Act ("INA"), Singh was removable from the United States by reason of having entered without admission or parole.

At the removal hearing, Singh conceded removability. At a subsequent hearing, the IJ denied Singh's application for asylum and withholding of removal on the grounds that his testimony lacked credibility. In addition, the IJ rejected Singh's application for voluntary departure because he had not been physically present in the United States for a year or more.

On appeal, the BIA conducted a de novo review of the record and affirmed the IJ's adverse credibility determination. The BIA cited three reasons for its adverse credibility determination: the omission of Singh's arm injuries in the doctor's letter and the inadequacy of Singh's explanation for this omission; the discrepancy regarding the location of the January 1997 political rally; and Singh's alleged unresponsiveness to questions at the hearing. Finding Singh's testimony not credible, the BIA declined to consider the merits of Singh's asylum and withholding of removal claims, reasoning that "a persecution claim which lacks veracity cannot satisfy the burdens of proof and persuasion necessary to establish eligibility for asylum and withholding of removal."

Singh filed this timely appeal.

II. DISCUSSION
A. Standard of Review

We review the BIA's denial of asylum for substantial evidence. Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We must affirm if the BIA's determination is "supported by reasonable, substantial, and probative evidence," and we reverse only if "the evidence [that the petitioner] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA reviews the IJ's decision de novo, our review is limited to the BIA's decision.2 Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995).

B. The BIA's Adverse Credibility Finding

Singh claims that he is entitled to asylum and withholding of removal pursuant to INA § 208(a) and former § 243(h).3 The credibility of a petitioner's oral testimony before the IJ is critical for establishing the requisite fear of persecution necessary to grant asylum or withholding of removal. See Salazar-Paucar v. INS, 281 F.3d 1069, 1073-74 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002).

To support an adverse credibility determination, the BIA must have "a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (quoting Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998)). Inconsistencies in the petitioner's statements must go to "the heart of [his] asylum claim" to justify an adverse credibility finding. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (alteration in original) (quoting Ceballos-Castillo v. INS, 904 F.2d 519 520 (9th Cir.1990)). "`Minor inconsistencies' that `reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding.'" Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)). Thus, we must determine whether the evidence cited by the BIA supports its adverse credibility finding.

Here, the BIA based its finding on alleged inconsistencies regarding the injuries Singh sustained from the police beating, the location of the January 1997 political rally, and Singh's alleged unresponsiveness during the hearing. Each of these reasons is discussed in turn.

1. Singh's Injuries

The BIA found Singh's testimony regarding the injuries he sustained from the police beating not to be credible, on the ground that it was inconsistent with Dr. Gursharan Singh's letter. However, not only was Singh's testimony not inconsistent, it was also corroborated by physical evidence.

First, the BIA stated the letter to be inconsistent with Singh's testimony because the letter noted "injuries to [Singh's] lips, nose, feet, and groin" but did not mention any injury to his arms. However, the omission in the doctor's letter does not make the two accounts inconsistent. The term "inconsistent" is defined in Webster's Dictionary as "lacking in correct logical relation: contradictory" or "not in agreement or harmony: incompatible." Webster's II New College Dictionary 561 (1st ed.1995). Had the letter stated that Singh was not treated for injuries or that Singh had no burns on his arms or that he was treated only for the stated injuries, it would have been inconsistent with Singh's testimony. A mere omission of one detail included in Singh's oral testimony does not make the letter logically inconsistent or incompatible. See Osorio, 99 F.3d at 931 ("[T]he omission of details from an applicant's earlier testimony cannot serve as the basis for an adverse credibility finding: `If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot.'") (emphasis in original) (quoting Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th Cir.1990)). As the doctor's letter is not inconsistent with Singh's testimony, it cannot serve as the basis for the BIA's adverse credibility determination.

Second, Singh presented evidence corroborating his oral testimony. An adverse credibility determination may be reversed on appellate review when the applicant has provided corroborating evidence, even if the IJ had some basis for disbelieving the applicant. Cf. Sidhu v. INS, 220 F.3d 1085 (9th Cir.2000) ("[W]here the IJ has reason to question the applicant's credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review."). Here, Singh had burn marks on his arms, as noted at the asylum hearing. The burn marks, in conjunction with the doctor's letter, corroborate the fact that Singh sustained injuries and support his testimony that one of the injuries sustained from the beating was the burning of his arms. See Gui v. INS, 280 F.3d 1217, 1227 (9th Cir.2002) (recognizing that corroborative evidence...

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