Jarnail Singh v. Alberto R. Gonzales, Attorney General

403 F.3d 1081, 2005 WL 843918
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 13, 2005
Docket02-74426
StatusPublished
Cited by192 cases

This text of 403 F.3d 1081 (Jarnail Singh v. Alberto R. Gonzales, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarnail Singh v. Alberto R. Gonzales, Attorney General, 403 F.3d 1081, 2005 WL 843918 (9th Cir. 2005).

Opinions

Opinion by Judge BERZON; Concurrence by Judge LEAYY

BERZON, Circuit Judge.

Jarnail Singh, a native and citizen of India, entered the United States without inspection in June 1994. He applied for asylum in November 1996, citing persecution by the Indian police because he supported Sikh separatism. The Immigration Judge (“U”) denied Singh’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), after making an adverse credibility determination. The Board of Immigration Appeals (“BIA”) streamlined Singh’s appeal and affirmed “the results of the decision below” pursuant to 8 C.F.R. § 1003.1(e)(4) (2002). We review the IJ’s decision as the final agency determination, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003), grant the petition for review, and remand.

BACKGROUND

Singh’s asylum application and testimony in support of his claims for relief from removal, taken together, stated the following: Singh was an active supporter of the Akali Dal Mann party and the All India Sikh Student Federation. On four occasions, the Indian police persecuted him because of his advocacy for a Sikh homeland of Khalistan. After his final arrest, he went into hiding. His wife and father were harassed and arrested because, while in hiding and going “to different places,” Singh did not report to the police in accord with a condition of his last release from detention. In support of his applications for relief, Singh provided documentary evidence, including an affidavit from his father.

After Singh’s removal hearing, IJ Anna Ho issued a written decision in which she made an explicit adverse credibility determination, specifying four grounds:

1) Singh omitted two details concerning his first arrest that were recounted in his father’s supporting affidavit: a false charge of spousal abuse and a promise he [1084]*1084made when he was released that he would not associate with Sikh separatists.

2) There were discrepancies between two sets of arrest dates, those that Singh reported to an asylum officer in his asylum interview and those contained in Singh’s testimony.

3) There was an inconsistency concerning Singh’s role in a 1992 election boycott between Singh’s father’s affidavit and Singh’s testimony.

4) There was a conflict between the father’s affidavit and Singh’s testimony concerning when Singh’s last arrest took place.

As an alternative to the adverse credibility determination based on these four grounds, the IJ held that “even if assuming arguendo, the respondent’s testimony to be true, the conditions of India have changed since he left the country.” The IJ did not make an explicit finding about whether Singh’s testimony, if credible, established past persecution.

Singh appealed to the BIA. Singh’s attorney provided explanations in the brief for the grounds relied upon by the IJ in making her adverse credibility determination, stating that:

[Singh] did not mention the false charge of spousal abuse because it was just that [ — ] a false charge created by the police to embarrass the respondent.... The respondent argues that he did not mention the charge because it did not deserve to be mentioned. ... Concerning the promise not to associate with the Khalistan movement, the respondent also did not consider it worthy of mention. It was a promise extracted from him by the police. He did not give it freely and did not believe that he was bound by it.

In addition, the brief stated “that [Singh] was nervous during his meeting with the asylum officer and that accounts for his errors [during the asylum interview].” On the issue of the election boycott, the brief “maintain[ed] that [Singh] was involved in the movement and that it was not, as the IJ argues, a single event, the boycott of the election.... The fact that he was in prison on the day of the election does not prove that he did not participate in the movement.” Finally, the brief argued that the date inconsistency identified by the IJ with respect to Singh’s last arrest was “minor.”

The BIA affirmed the results of the IJ’s decision without opinion. See 8 C.F.R. § 1003.1(e)(4) (2002).

DISCUSSION

I

a. Conflict between Singh’s testimony and his father’s affidavit with regard to Singh’s first arrest

The IJ’s adverse credibility conclusion was based in part on her statement that:

Singh testified that he was arrested on April 3, 1990, taken to the police station and beaten. This testimony conflicts with the statement provided by the respondent’s father, where the father wrote that the police filed a false charge of spousal abuse against the respondent. The respondent never mentioned this, nor did he mention that he had to promise that he would not associate with the Khalistan movement upon his release on April 3,1990.

This ground for finding that Singh lied at his removal hearing is not supported by substantial evidence.

First, Singh was not asked about his father’s statements regarding the false charges or the promise not to associate on cross-examination, and nothing he said at the hearing conflicted with those state[1085]*1085ments. Where an asylum applicant is “denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony!, t]he IJ’s doubt about the veracity of her story ... cannot serve as a basis for the denial of asylum.” Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004). Second, Singh did mention the release condition and the false charge in the declaration he attached to his asylum application:

My father was able to secure our release ... on the condition that they will have no associations with the Federation or the Khalistan movement.... Nevertheless, the following month, the government of Haryana filed criminal charges against me alleging that I had mistreated my wife.... When our case was finally presented before a court, my wife explained that the charges were false.

Cf. Ochave v. INS, 254 F.3d 859, 865 (9th Cir.2001) (“The IJ must consider evidence contained in [an] application for asylum.”). Third, nothing Singh said at the hearing conflicted with his father’s statements; rather, Singh omitted two details. “[T]he mere omission of details is insufficient to uphold an adverse credibility finding.” Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir.2000). Moreover, Singh could not have had a nefarious reason for failing to testify to these matters, as they in no way detract from his eligibility for asylum: A false charge of spousal abuse is consistent with persecution on account of political opinion, as is the release condition mentioned by his father. See Shah v. INS,

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Cite This Page — Counsel Stack

Bluebook (online)
403 F.3d 1081, 2005 WL 843918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarnail-singh-v-alberto-r-gonzales-attorney-general-ca9-2005.