Singh v. Gonzales

• Citation: 439 F.3d 1100
• Decision Date: 10 March 2006
• Docket Number: No. 03-71255.,03-71255.
• Parties: Rajinder SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

439 F.3d 1100

Rajinder SINGH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-71255.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2006.

Filed March 10, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Hardeep S. Rai, Esq., Law Office of Hardeep S. Rai, San Francisco, CA, for the petitioner.

Norah Ascoli Schwarz, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-846-897.

Before ALARCÓN and McKEOWN, Circuit Judges, and H. RUSSEL HOLLAND,^* District Judge.

ALARCÓN, Circuit Judge.

Rajinder Singh petitions for review of the Board of Immigration Appeals' ("BIA") decision to deny his application for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984) ("Convention Against Torture"). We grant the petition for review because we conclude that the Immigration Judge's ("IJ") credibility findings are not supported by substantial evidence. We remand for further proceedings to determine whether, accepting Mr. Singh's testimony as credible, he is eligible for asylum or withholding of removal. We deny Mr. Singh's petition for relief under the Convention Against Torture because substantial evidence supports the BIA's dismissal of that claim.

I

Mr. Singh is a native and citizen of India, born on June 10, 1974 in Punjab, India. He is single, not politically active, and a nonbaptized Sikh. Mr. Singh entered the United States on or about November 18, 1997, using a false passport. On April 17, 1998, the Government issued a Notice to Appear alleging that Mr. Singh entered the U.S. illegally. Mr. Singh applied for asylum, withholding of removal, and relief under the Convention Against Torture on April 24, 1998, and appeared before the IJ on June 23, 1998 in response to the Notice to Appear. Through counsel, he conceded removability and admitted the factual allegations in the notice.

Mr. Singh testified at the August 27, 1998 and December 28, 1998 asylum proceedings that he worked in India as a driver in his family's trucking business. On August 15, 1996, Indian Independence Day, approximately forty members of a Sikh separatist group approached Mr. Singh and asked him to transport them to a demonstration in support of an independent Sikh state. Mr. Singh testified that he was unsure how many times he had transported protesters before this. He agreed to do so on this occasion in exchange for diesel fuel. On the way to the rally, the separatists shouted "long live Khalistan, death to the Punjab police" and waived flags bearing the same slogan. Before they reached their destination, the police stopped Mr. Singh and accused him of "inciting people against the government." The police arrested Mr. Singh and took him to the Jalandhar police station. There, Inspector Mangl Ram and four other policemen removed Mr. Singh's clothes and proceeded to kick and beat him with a leather strap on his legs and genitals for approximately thirty to forty-five minutes, until he was unconscious.

During the beating, the policemen interrogated Mr. Singh about his transportation of Sikh protestors, inciting them against the government, and having "connections with terrorists." Two days later, the same officers returned around noon and resumed their interrogation and physical assaults. The police detained Mr. Singh for seventeen days. Mr. Singh was released after his father and uncle paid a bribe of 45,000 rupees.

Upon his release, Mr. Singh received medical treatment from his village doctor. Mr. Singh was hospitalized at Dhillon Hospital, where he received medication, bandages, and ointments for his wounds. Mr. Singh's truck also required repairs because the police had slashed its tires and broken the mirrors.

On January 24, 1997, two days before another politically significant day in India, the police raided Mr. Singh's parents' home in the early morning hours looking for Mr. Singh. The officers warned Mr. Singh's father that his son "would not be spared" if he were arrested or if he transported protesters to another demonstration. Mr. Singh's father contacted Mr. Singh and told him that it was not safe for him to return home. Instead, he went to Patiala, where he stayed with relatives for about a month.

Mr. Singh paid an agent 600,000 rupees to arrange for his entry into the United States. The agent first sent Mr. Singh to Bangkok, Thailand on a seven-month visa. Mr. Singh stayed at a Sikh temple in Bangkok. When his Thailand visa expired, Mr. Singh entered the United States illegally. Since Mr. Singh left India, the police have raided his home at least twice seeking to apprehend him.

The IJ denied Mr. Singh's asylum application and ordered him removed to India. The IJ found that Mr. Singh's testimony was implausible and not credible. Alternatively, the IJ found that even if Mr. Singh's testimony were accepted as truthful, he had not demonstrated that he had suffered past persecution because of imputed political opinion. The BIA affirmed in a per curiam decision dated February 25, 2003. The BIA's opinion included a short footnote denying Mr. Singh's claim under the Convention Against Torture because he had "not proffered prima facie evidence that it was more likely than not that he would be tortured if he returned to India." Mr. Singh timely petitioned for review on March 24, 2003. We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1).

II

Mr. Singh contends that his petition for review should be granted because substantial evidence does not support the IJ's finding that his testimony was not credible. We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir.2004). Although this standard is deferential, the IJ or BIA must identify "specific, cogent reasons" for an adverse credibility finding, and the reasons must be substantial and legitimately connected to the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996), superceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996), Pub.L. No. 104-208, 110 Stat. 3009). This means that the reason identified must "strike at the heart of the claim" for asylum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004).

"Minor inconsistencies ... that do not relate to the basis of an applicant's alleged fear of persecution, [or] go to the heart of the asylum claim" do not generally support an adverse credibility finding. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003). An IJ must also afford petitioners a chance to explain inconsistencies, and must address these explanations. Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004); Chen, 362 F.3d at 618. Finally, an IJ may not base adverse credibility determinations on speculation or conjecture not supported by evidence in the record. Ge v. Ashcroft, 367 F.3d 1121, 1124-25 (9th Cir.2004); Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000). We independently review each ground the IJ cites in support of an adverse credibility finding. Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th Cir.2005).

A

The IJ found that Mr. Singh's testimony describing the beating administered by the police after his arrest was not credible. She noted that Mr. Singh's description of how the police laid him on his back, as well as how two of them "were holding [him] from behind," was "contradict[ory]." Mr. Singh explained, however, that the officers first tied his arms behind his back, then later untied his arms, laid him out on the floor, and kicked him. When he tried to sit up, they forced him back down by sitting on his chest. The IJ did not address Mr. Singh's explanation of this alleged inconsistency. Because "[a]n adverse credibility finding is improper when an IJ fails to address a petitioner's explanation for a discrepancy or inconsistency," this testimony does not provide substantial evidence to support an adverse credibility determination. Kaur, 379 F.3d at 887.

B

The IJ also found that Mr. Singh was not credible because of perceived inconsistencies in the evidence regarding which family member paid the bribe to secure Mr. Singh's release from police custody. Mr. Singh's uncle alleged in his affidavit that he paid the bribe. In their affidavits, both Mr. Singh's father and the village sarpanch alleged that his father paid the bribe. Mr. Singh explained that his uncle and father procured and delivered the money together. Any inconsistency as to who paid the bribe does not go to the heart of Mr. Singh's claim. Therefore, it does not provide substantial evidence to support a finding of adverse credibility. See Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir.2000) (explaining that petitioner's asylum application statement that his father paid an influential man to gain his release and petitioner's testimony that his grandfather bribed a government official to gain his release were not inconsistent statements justifying an adverse credibility finding).

C

The IJ also based her credibility finding on Mr. Singh's testimony regarding the threats made during the first police raid of his home. The transcription of Mr. Singh's testimony on direct examination is garbled and includes "indecipherable" notations at key points. The record shows, however, that Mr. Singh testified that while making a delivery in Delhi, he called his father, who told him the police had raided his home and warned him...