Singh v. Ashcroft

• Citation: 362 F.3d 1164
• Decision Date: 26 March 2004
• Docket Number: No. 02-71594.,02-71594.
• Parties: Malkit SINGH, Petitioner, v. John ASHCROFT, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.3d 1164

Malkit SINGH, Petitioner, v. John ASHCROFT, Attorney General,^* Respondent.

No. 02-71594.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2003.

Filed March 26, 2004.

COPYRIGHT MATERIAL OMITTED

Jonathan M. Kaufman, San Francisco, CA, for the petitioner.

Laura L. Flippin and Marion E. Guyton, United States Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: GRABER, WARDLAW, and CLIFTON, Circuit Judges.

ORDER

The Opinion filed on August 15, 2003, slip op. at 11509, and published at 340 F.3d 802 (9th Cir.2003), is hereby amended. The Clerk shall file the attached Amended Opinion. With this Amended Opinion, the panel has voted unanimously to deny the petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to hear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing will be entertained.

IT IS SO ORDERED.

OPINION

WARDLAW, Circuit Judge.

We must decide whether the Board of Immigration Appeals ("BIA") erred in dismissing petitioner Malkit Singh's appeal from a decision denying his eligibility for asylum. Singh contends that the BIA erred in two separate ways, one procedural and the other substantive.

The procedural challenge is based on the BIA's refusal to grant him leave to file a "late" brief. It was not Singh's fault that his brief was not timely filed. He dutifully followed the regulations and procedures pertaining to filing his Notice of Appeal, but the BIA deprived him of the opportunity to timely file his brief when it sent the briefing schedule and transcripts of proceedings to the wrong address, and the deadline for filing passed before Singh even knew about it. The BIA's refusal to grant his motion for leave to file a late brief violated due process.

The second challenge concerns the BIA's determination that Singh's testimony before the Immigration Judge ("IJ") was not credible. The BIA's decision was based solely upon this adverse credibility determination, and Singh argues that it is not supported by substantial evidence. The Immigration and Naturalization Service ("INS") takes the position that the BIA's decision should be affirmed despite the BIA's failure to provide Singh with any notice and any opportunity to be heard because the BIA's decision is nonetheless supported by substantial evidence and Singh suffered no prejudice. In other words, the INS claims that the record before us, which includes the arguments in the brief that the BIA rejected as untimely, does not contain anything that would have caused the BIA to alter its adverse credibility finding.

Because the BIA's decision is not supported by substantial evidence, and the evidence in fact compels us to find that Singh's testimony before the IJ was credible, we grant Singh's petition. We remand this matter to the BIA for a determination, accepting Singh's testimony as credible, whether Singh is otherwise eligible for asylum, and for the exercise of discretion on his asylum application.

I

Singh provides a credible account of persecution on political and religious grounds. Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India. He entered the United States without inspection in November of 1995 and filed an application for asylum. On September 26, 1996, the INS commenced deportation proceedings against him.

In his asylum application, and during seven subsequent hearings before an IJ held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the All India Sikh Student Federation ("AISSF") and his support of the Akali Dal Party.

At the age of nineteen, Singh became involved with the AISSF after an attack on the Sikh Golden Temple, which was believed to be the work of Indian security forces. In 1988, Singh was arrested during an AISSF rally that he organized in Jallhandar. He was held in jail for fifteen days, while being beaten and tortured by the police. He was never charged with a crime nor brought before a judge.

In January of 1992, Indian police again arrested Singh without a warrant. He was held for twenty days, beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF. The police told him he was arrested because of his association with Sikh militants, even though he adamantly denied any such association.

In August 1993, Singh was arrested for a third time, along with three other AISSF members, while leaving the Sikh temple in his village. He was held by the police for thirteen days, during which time he was beaten until he lost consciousness. His head was shaved, an affront to Sikh religious practice, and he was then forced to stand for hours under the hot summer sun.

In April 1995, Singh testified that he was arrested for a fourth and final time while distributing party posters and collecting party funds. This time, he was held in jail for thirty-five days, again without being charged with a crime or taken before a judge. While in jail, he was tortured, humiliated, and threatened with death if he continued to support the AISSF.

After Singh's release, his father arranged for him to leave the country through an agent who secured a fake passport and transportation for him. He traveled via Singapore to Mexico, and then entered the United States.

II

On December 8, 2000, the IJ denied Singh's asylum application, finding his testimony internally inconsistent and inconsistent with his application. Singh timely appealed the IJ's decision to the BIA. He had recently moved to a new address and, following the form's instructions, he provided his new mailing address on the Notice of Appeal. Accordingly, the BIA sent the receipt for the filling of the appeal to that mailing address. However, on April 24, 2001, nearly a year and a half after Singh filed his appeal, the BIA sent the briefing schedule and transcript of his deportation hearings to his former address.

On July 16, 2001, seven weeks after the deadline contained in the misaddressed briefing schedule had passed, Singh learned of the error and filed an unopposed motion for an extension of time to a file a brief. On April 8, 2002, the BIA denied Singh's motion as untimely, so he was unable to file a brief.

Six weeks later, over a dissent by Board Member Rosenberg, the BIA dismissed the appeal, stating that Singh failed to provide "any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness." Singh timely petitioned for review.

III

We have jurisdiction over a final removal order pursuant to 8 U.S.C. § 1252(a)(1). We review for substantial evidence the decision that an alien has not established eligibility for asylum. Cardenas v. INS, 294 F.3d 1062, 1065 (9th Cir. 2002) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Adverse credibility findings are also reviewed for substantial evidence. Valderrama v. INS, 260 F.3d 1083, 1085(9th Cir.2001) (per curiam). We reverse the BIA's decision only if the evidence that the petitioner presented was "so compelling that no reasonable factfinder could find that he was not credible." Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (internal quotation marks omitted).

IV

This is not the typical case in which a petitioner does not receive notice, is deported in absentia, and is before us attempting to explain his (or, as is more usually the case, his attorney's) failure to appear or to comply with the address requirements, deadlines, or any of the other complex INS regulations. In this case, it is the INS that has been stymied by its own byzantine rules.

The BIA's refusal to allow Singh to file a brief explaining his allegedly inconsistent testimony violated his right to due process. Indeed, "the BIA must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum." Campos-Sanchez v. INS, 164 F.3d 448, 450(9th Cir.1999); see also Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003) (due process satisfied when petitioner has "the opportunity to address the credibility question before the BIA, in briefing and in argument"). Denying Singh the opportunity to file a brief plainly violates this well-established due process right.

The BIA, after sending the briefing schedule and transcript to an incorrect address, justified denying Singh's motion to file a late brief by asserting that the motion was untimely. However, "[t]o comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them." Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir.2002). Notice mailed to an address different from the one Singh provided could not have conceivably been reasonably calculated to reach him. As Singh was not afforded notice of the deadline, the BIA's reasoning that his motion was untimely is patently insufficient.

The INS argues that notice was sent to the proper address, and it is Singh who is at fault for failing to properly inform the BIA of any change of address. However, the very instructions provided on the BIA's Notice of Appeal form, EOIR-26, require immigrants to file a Change of Address form, EOIR-33, only if they wish to change the address they provided on the Notice of Appeal. The manual the BIA provides to help aliens navigate these treacherous bureaucratic waters clarifies: "When an appeal is filed, the Board relies on the address for...