Singh v. I.N.S.

• Decision Date: 10 June 2002
• Docket Number: No. 01-70177.,01-70177.
• Citation: 292 F.3d 1017
• Parties: Mohinder SINGH, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

292 F.3d 1017

Mohinder SINGH, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 01-70177.

United States Court of Appeals, Ninth Circuit.

Submitted March 12, 2002.^*

Filed June 10, 2002.

Manpreet Singh Gahra, Law Office of Virender K. Goswami, San Francisco, California, for the petitioner.

Gretchen M. Wolfinger, Department of Justice, Civil Division, Washington, D.C., for the respondent.

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

Before RYMER, KLEINFELD, and McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

Mahinder Singh, also known as Mohinder Singh, a native and citizen of Punjab, India, petitions for review of a decision by the Board of Immigration Appeals. The Board denied Singh's application for asylum and withholding of deportation on the basis of the Immigration Judge's adverse credibility determination. In particular, the Board found that Singh's testimony was not credible because it was inconsistent with information he gave during his airport interview. The airport interview, however, was conducted through an unofficial translator who did not even speak Singh's own language. We conclude that this credibility finding and the Board's other misgivings about Singh's testimony are not supported by substantial evidence. Accordingly we grant the petition and remand for further proceedings.

BACKGROUND

Singh, who claims to have been a Sikh since birth, owned and operated a tractor repair shop in Noormahal, Punjab, for twenty years before he fled India in 1993. Singh supported his parents, wife, son, and younger brother, Surjit, with the income derived from his shop and a farm that he owned. While hiding from authorities in New Delhi, Singh arranged the sale of his business to finance his escape from India to the United States. With the help of an "agent," Singh departed India and arrived in New York in March 1993. He left behind his wife and teenage son, who both still live in India.

In the years leading up to Singh's escape, conditions in Noormahal and the Punjab in general were anything but normal. Although Sikhs comprise 60 percent of Punjab's population, "fear of domination by India's Hindu majority and economic concerns have fueled discontent and strife" which led to the formation of several Sikh separatist movements. U.S. DEPARTMENT OF STATE, India: Comments on Country Conditions and Asylum Claims, at 4 (February 1994). Singh's brother, Surjit, was a member of one such, ostensibly non-violent movement, the All India Sikh Student Federation ("AISSF") whose goal was the formation of an independent Sikh state of Khalistan.

The governing political party in 1992, the Congress Party, did not support the AISSF or the creation of an independent state. As a consequence of his political activities on behalf of the AISSF, Singh's brother was arrested, held, and beaten by Punjab police on two occasions. After the first arrest, during which he was told to leave the party, Surjit returned to Singh's home and continued conducting AISSF activities. The second arrest occurred in February 1992 during the election of a new Punjab Chief Minister, Beant Singh, who allegedly favored suppressing separatists through violent means including death. Upon release, Surjit stayed for a night at his brother's home before going into hiding.

Singh claims he has not seen his brother since that night in February 1992. Nonetheless, Singh maintained contact with Surjit through letters delivered by Surjit's friends in the AISSF. In March 1992, one such messenger, Harvinder Singh, delivered a message from Surjit to his brother and stayed the night in Singh's home. Harvinder left the next morning with a letter for Surjit from Singh. The Punjab police arrested Harvinder in route, found the letter, and subsequently arrested Singh at his home. Singh was beaten barehanded and with sticks. During the beating, the officers told Singh they were detaining him because the letter revealed that he was an "accomplice" of Surjit and Harvinder, both known members of the AISSF and supporters of Khalistan, and that Singh, too, was a member and in favor of independence. The police also indicated to Singh that they knew Harvinder had eaten dinner and stayed over at Singh's home the night before. Singh was released the following evening in response to pressure from his sarpanch, the village elder. After Singh's release, a local doctor treated his injuries.

According to Singh, several months after his first arrest, the AISSF splintered and the government, specifically Minister Beant Singh and the head of Punjab police, K.P.S. Gill, took advantage of this opportunity to apprehend the remaining members of the AISSF, thereby putting an end to the independence movement. According to Singh, local authorities had been instructed to "crush the movement of Khalistan." As a result, Singh was arrested a second time in September 1992.

The police beat Singh with a rubber pipe, dragged him by his hair, and caused a cut on Singh's head when throwing him into a cell. Singh pointed out the scar at trial. Apparently the police told Singh that "all the ideas of Khalistan, we will drain it out from your mind and will kill all those people who are in favor of Khalistan...." Singh was released the following day after his sarpanch arranged a payment of 45,000 rupees from Singh's family to the police. Upon release, Singh was again treated by a doctor for his injuries.

Singh testified that the police told him that he was part of the September round-up because his name was placed on a list of AISSF supporters after his first arrest. According to Singh, being added to such a list was a routine part of being arrested; if subsequent trouble occurred, the lists were used to round up individuals associated with the independence movement.

After the second arrest, Singh moved to Delhi where he lived in fear of police who might have recognized him as an AISSF supporter. He hid for four or five months until he could secure passage to the United States. While in Delhi, he secured the aid of an "agent" who facilitated his escape with funds derived from the sale of his business in Punjab. Singh arrived at JFK Airport in New York without a passport or visa in March 1993, at which time he was questioned by an INS officer.

Singh's airport interview was conducted through an unofficial, "outside translator" who spoke Hindi, a language Singh, a native Punjabi speaker only understood "a little." Prior to the interview, Singh claims that the translator solicited a bribe from him in return for giving a statement in Singh's "favor." After Singh told the translator he only had $50, the translator began to verbally abuse him. When asked at trial why he did not report the attempted bribe to the immigration officer, Singh replied, "I do not know English so how could I tell."

The interview consisted of seventeen basic questions as evidenced by the typewritten statement prepared by the immigration officer at the scene and signed by Singh in his native script. The transcript includes the following exchange:

Q: Have you or any members of your family ever been persecuted by the present Gov't [sic] of India?

A: No

Q: Have you ever been arrested by the police in India?

A: Yes, two times because they said I stole food

Q: Did you steal food?

A: No, I didn'tr [sic] they said I did both times occured [sic] last year and I was in jail for a few days

Q: What will happen if you return to India?

A: I will be shot

At Singh's exclusion hearing, the IJ rendered an oral decision discrediting Singh's testimony. The BIA expressly adopted that part of the IJ's decision describing his findings of fact and perceived implausibilities and inconsistencies. Singh now petitions for review of the BIA's decision.

DISCUSSION

The BIA's determination that Singh "was not eligible for asylum must be upheld if `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review credibility findings under a substantial evidence standard as well. Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996). In this instance, we are reviewing the Board's independent credibility determination, including those aspects of the IJ's decision expressly adopted by the Board. Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996). Accordingly, the Board "must have a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief, and any such reasons must be substantial and bear a legitimate nexus to the finding." Osorio, 99 F.3d at 931 (citations and quotations omitted). Conjecture and speculation on the part of the Board or the IJ "can never replace substantial evidence." Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir.2000).

Here, the BIA concluded that three aspects of Singh's claim warrant an adverse credibility determination: (1) variances between Singh's airport statement and his claim as asserted at the hearing; (2) "misgivings" about the likelihood of Singh's arrest in March 1992; and (3) lack of a plausible explanation for the arrest many months later in September 1992. We address each in turn.

I. The Airport Interview

In concluding that Singh's testimony was not credible, the Board was particularly concerned with "the variance between [Singh's] initial statement to Service inspectors upon arrival and his claim as asserted at the hearing." It found that Singh had no plausible explanation for such inconsistencies, rejecting any notion that his failure to produce a bribe for the airport interpreter could account for the variance. We disagree. We conclude from this record that the Board's reliance on Singh's airport statements does not constitute a valid ground for an adverse credibility determination. Our decision is not grounded upon any disagreement with the Board's assessment of the...