Jitender Singh v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2018
• Docket: 15-73589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JITENDER SINGH, No. 15-73589

Petitioner, Agency No. A201-295-156

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted October 12, 2018 San Francisco, California

Before: TASHIMA and MURGUIA, Circuit Judges, and CHATIGNY,** District Judge.

Jitender Singh petitions for review of the Board of Immigration Appeals’

(“BIA”) order affirming an Immigration Judge’s (“IJ”) denial of his application for

asylum, withholding of removal, and protection under the Convention Against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert N. Chatigny, United States District Judge for the District of Connecticut, sitting by designation. 1 Torture (“CAT”).1 Because the BIA’s adverse credibility determination was not

supported by substantial evidence, we grant the petition and remand for further

proceedings.

The adverse credibility determination rested primarily on three perceived

conflicts between petitioner’s oral and written testimony, but petitioner was not

asked to reconcile two of those inconsistencies. Specifically, petitioner was not

given an opportunity to explain the discrepancies regarding (1) when the threats on

his grandfather began, and (2) whether he reported the first assault to the police.

“[A]n IJ cannot base an adverse credibility determination on a contradiction that

the alien could reconcile if given a chance to do so.” Rizk, 629 F.3d at 1088; see

also Lai v. Holder, 773 F.3d 966, 974 (9th Cir. 2014) (“Where an asylum applicant

is denied a reasonable opportunity to explain what the IJ perceived as an

inconsistency in her testimony, the IJ’s doubt about the veracity of her story cannot

serve as a basis for the denial of asylum.” (quoting Singh v. Gonzales, 403 F.3d

1081, 1085 (9th Cir. 2005))).

In addition, the IJ and BIA failed to consider hospital records from India,

which, if credited, show that petitioner was admitted on the dates of the alleged

assaults. “Because an adverse credibility determination under the REAL ID Act

1 Because petitioner’s opening brief does not raise or argue his CAT claim, that claim is waived and we do not address it. See Fed. R. App. P. 28(a)(8)(A); Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). 2 must be based on the ‘totality of the circumstances,’ the IJ also should consider and

address, as necessary or otherwise appropriate, relevant evidence that tends to

contravene a conclusion that a given factor undermines credibility.” Shrestha v.

Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (citing Hanaj v. Gonzales, 446 F.3d

694, 700 (7th Cir. 2006)). The hospital records undermine the adverse credibility

determination by partly corroborating petitioner’s narrative, and the IJ and BIA

were not permitted to ignore them. Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091-92

(9th Cir. 2014).

We remand on an open record to allow the BIA to evaluate petitioner’s

credibility based on “the totality of the circumstances,” including the hospital

records and any explanations offered for the inconsistencies discussed above.

8 U.S.C. § 1158(b)(1)(B)(iii). “Because the BIA has not evaluated [petitioner’s]

eligibility for asylum or withholding of removal independently from its adverse

credibility finding, we also remand to give the agency an opportunity to make

those determinations in the first instance.” Soto-Olarte v. Holder, 555 F.3d 1089,

1096 (9th Cir. 2009).

PETITION FOR REVIEW GRANTED; CASE REMANDED IN PART.