Singh v. Eric H. Holder Jr

• Decision Date: 25 March 2011
• Docket Number: No. 07-71289,No. 06-74547,Agency No. A077-431-974,Agency No. A072-172-796,Agency No. A077-431-973,06-74547,07-71289
• Parties: Nirmal Singh; Kulwant Kaur; Sanjot Singh, Petitioners, v. Eric H. Holder Jr., Attorney General, Respondent. Kulwant Kaur; Sanjot Singh, Petitioners, v. Eric H. Holder Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Nirmal Singh; Kulwant Kaur; Sanjot Singh, Petitioners,

v.Eric H. Holder Jr., Attorney General, Respondent.

Kulwant Kaur; Sanjot Singh, Petitioners,

v.Eric H. Holder Jr., Attorney General, Respondent.

No. 06-74547

Agency No. A072-172-796

Agency No. A077-431-973

Agency No. A077-431-974

No. 07-71289

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted January 12, 2011^*

Filed March 25, 2011

FOR PUBLICATION

OPINION

On Petitions for Review of Orders of the Board of Immigration Appeals

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Before: Alex Kozinski, Chief Judge, John T. Noonan and Barry G. Silverman, Circuit Judges.

Opinion by Chief Judge Kozinski; Partial Concurrence and Partial Dissent by Judge Noonan

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COUNSEL

Sabey Abraham, Hardeep S. Rai and Rebecca Rudzianis, Rai & Associates, P.C., San Francisco, California, for the petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division; Gregory G. Katsas, Acting Assistant Attorney General, Civil Division; Michelle G. Latour, Assistant Director, Lisa M. Arnold, Senior Litigation Counsel, Luis E. Perez, Tracie N. Jones and Schwanda Rountree, Of Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

OPINION

KOZINSKI, Chief Judge:

we consider whether lying to the immigration authorities is a sufficient basis for an adverse credibility finding, and when a lie uttered by one spouse may fairly be attributed to the other.

Facts

Nirmal Singh filed an asylum application soon after he came to the United States in 1994. He claimed that he had been persecuted in India because of his support for the Akali Dal Mann Party. Singh testified that he was arrested and severely beaten three times for his political activities, and that

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he believed the police murdered his brother for participating in a political protest. The asylum officer disbelieved Singh and referred his application to an immigration judge for adjudication in removal proceedings.

A few months later, Singh's wife Kulwant Kaur flew to the United States with their son. Singh picked them up at the airport and brought them to his home in San Jose. After they settled in, Kaur also applied for asylum. Someone apparently advised her that she couldn't be granted asylum if she said she was living with her husband, so she lied on her application form. She claimed that Singh was not in the United States and that she had no information as to his whereabouts. She also falsely indicated that Singh had never applied for asylum.

Kaur's interview went better than Singh's. She told the asylum officer that she had been arrested and raped because of her political activities in India. She again lied under oath about not knowing the whereabouts of her husband, and submitted an affidavit from Singh's father also claiming that he didn't know where his son was. And, of course, Kaur didn't mention that Singh had been denied asylum. The asylum officer believed Kaur and granted her application.

This gave Singh a second bite at the apple. He told the immigration judge in his own case that he planned to withdraw his asylum application. Rather than fighting the asylum officer's decision, Singh would join his wife's successful application. With Singh present in the courtroom, his lawyer falsely assured the IJ that the couple had only recently found each other here. Their cases were later consolidated.

But the government was suspicious, and the asylum officer re-interviewed Kaur with her husband present. Comparing Kaur's story to Singh's, the officer noted that Kaur hadn't previously mentioned that the police in India had murdered her brother-in-law (Singh's brother). Nor did the affidavit Kaur submitted from her father-in-law mention that his own

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son had been killed. This omission was remarkable because Singh had relied on the alleged killing to prove political persecution against his family. Kaur also gave conflicting dates for when Singh supposedly joined the Akali Dal Mann Party, and different details than her husband about whom he contacted before leaving India. And she continued to lie about when she had found Singh in the United States. Singh was present and spoke to the asylum officer, but said nothing to contradict his wife. The government terminated Kaur's asylum status, effective the day after the interview.

When petitioners both went before the immigration judge, Kaur finally admitted that she had lied on her application and twice lied to the asylum officer. The government pressed Singh on his lawyer's false representation that the couple had only recently discovered one another in the United States. Singh claimed he gave the lawyer accurate information about their situation, but the lawyer lied to the court anyway. And Kaur claimed the lawyer advised her to lie to the asylum officer. The IJ gave the couple an opportunity to call the lawyer, but they declined. They have never argued that they received ineffective assistance of counsel.

The IJ made an express adverse credibility finding against both Kaur and Singh, and on that basis denied their claims for relief. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir. 2003). Kaur later received an I-140 visa and requested that the Board of Immigration Appeals reopen her case to consider her application for adjustment of status. The BIA denied the motion.

Analysis

Immigration judges are in the best position to evaluate the credibility of an alien applying for relief. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003). We review adverse credibility findings for substantial evidence, and must uphold them unless the evidence compels a contrary result.

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Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048 (9th Cir. 2008).

I. Kaur (the wife)

[1] Kaur admits that she lied repeatedly to avoid being denied relief, and to prevent her husband from being sent back to India. We've seen this kind of behavior before, and not with favor. In Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005), the asylum applicant "admitted in her testimony that she lied about her marital status in order to ensure the possibility that her husband could file an asylum application in the event hers was denied." Id. at 1066. We held that intentional deception toward the immigration authorities is "culpable conduct" and one of several "indications of dishonesty" that "cast[s] doubt on [the applicant]'s entire story." Id. at 1066-67.

[2] Kaur argued to the BIA that the IJ erred by making an adverse credibility finding based on nothing more than "trivial errors" and "minor inconsistencies" that revealed nothing about whether she reasonably feared returning to India. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996). It's true that an adverse credibility finding must be based on more than an innocent mistake, but "[t]he concern underlying each of our decisions in this arena has been to avoid premising an adverse credibility finding on an applicant's failure to remember non-material, trivial details...." Kaur, 418 F.3d at 1064 (emphasis added); see also Marcos v. Gonzales, 410 F.3d 1112, 1117 (9th Cir. 2005) (explaining when "discrepancies" and "inconsistencies" count against applicant). An applicant will naturally be more likely to remember and relate the facts that are important to his claim. The IJ therefore shouldn't infer from an applicant's careless error about peripheral details that he's lying about the facts that do matter.

[3] But the rule is quite different when it comes to deliberate deception. See Liu v. Holder, No. 08-72849, 2011 WL

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635276, at *6 (9th Cir. Feb. 23, 2011) (distinguishing deliberate fabrications from omissions, inconsistencies and discrepancies). An asylum applicant who lies to immigration authorities casts doubt on his credibility and the rest of his story. There are strictly limited instances when we overlook an alien's decision to mislead immigration officials: In Akin-made v. INS, 196 F.3d 951 (9th Cir. 1999), we recognized that "a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of persecution or secure entry into the United States." Id. at 955; see also Marcos, 410 F.3d at 1117-18 & n.4. That kind of lie can't count against him. But the deception here was completely unrelated to escaping immediate danger or gaining entry into the United States. Kaur admits that she made a conscious decision to lie to the asylum office about a fact she believed was crucial to her claim for permanent relief. It doesn't matter that the fact turned out to be irrelevant. What matters is that the petitioner chose to lie to immigration authorities. That always counts as substantial evidence supporting an adverse credibility finding, unless the lie falls within the narrow Akinmade exception.

[4] For similar reasons, the BIA did not abuse its discretion in denying Kaur's motion to reopen for adjustment of status. See INS v. Abudu, 485 U.S. 94, 105 (1988). It reasonably concluded that Kaur's "history of misrepresentations... is a serious adverse factor that is not outweighed by her positive equities."

II. Singh (the husband)

Singh tried to piggyback on his wife's deception. His lawyer told the same fairy tale about how husband and wife had lost track of each other and then met by accident in the United States. Singh claims he didn't know what his lawyer was saying, but he was present and is fluent in English. The IJ didn't have to believe Singh. See Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Instead, she could reasonably infer that

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Singh heard and understood what his lawyer said, and remained silent because he had given the lawyer the false information or was content to have the lawyer lie on his behalf.

[5] Singh again said nothing when his wife lied during her second interview with the asylum officer. Nor did he contradict her false testimony when the asylum officer questioned him. Singh blamed antidepressant medication, but the IJ didn't have to buy...