Mohinder Singh v. John Ashcroft

367 F.3d 1139, 2004 U.S. App. LEXIS 9350

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2004
• Docket: 18-17177
• Status: Published

Opinions

RYMER, Circuit Judge:

Mohinder Singh, a native and citizen of India, petitions for review of the denial of his application for asylum. The Immigration Judge (IJ) denied Singh’s application for asylum because she found that he was not credible. The Board of Immigration Appeals (BIA) summarily affirmed. Singh argues that substantial evidence does not support the IJ’s adverse credibility determination and that he established asylum eligibility based on past persecution. The record supports the IJ’s adverse credibility determination, and we affirm.

I

Singh is a Sikh from the Punjab state in India. He entered the United States unlawfully on September 25, 1995, and sought asylum after the Immigration and Naturalization Service charged him under section 241(a)(1)(B) of the Immigration and Nationality Act as an alien who had entered without inspection. 8 U.S.C. § 1251(a)(1)(B) (1995).

Singh testified in support of his application and submitted documentary evidence. He claims that he actively supported a political organization called the “Shiromani Akali Dal” since 1978, and that he was arrested three times on account of his political opinion. The first arrest took place sometime in 1987; Singh was unsure of the month. Police came to his home, accused him of being linked to an individual named “Nam Singh” whose father worked on his farm, and kept him in custody for five days. Singh’s application states that the second arrest occurred in May 1990, but he testified that it was actually January 20 after he had obtained a death certificate that indicates his father died on January 29, 1990. On this occasion, Singh testified that he was arrested with his father and was beaten. As a result he suffered a broken nose and his whole face was badly swollen. He had stitches and a cast, was treated for a month, and stayed in the hospital. Singh went to his father’s funeral within a week of the incident, and photographs taken at the funeral reveal no sign of swelling or other facial injury. Singh explained that he removed the cast because it would not look good in the pictures. Singh also submitted a letter from the Aggarwal Clinic about his injuries and treatment; the letter is dated contemporaneously with the treatment and written in English (which Singh did not understand in 1990). Singh explained that he never saw the letter while he was in India, and that his wife sent it to him for court in the United States. When asked why the doctor would have back-dated the letter five or six years, Singh explained that the doctor used his old medical records to prepare it.

Singh testified that he went into hiding at his wife’s parent’s home after the second arrest, but continued to farm and pitch tents for the Akali Dal. He was arrested a third time, in January 1995, while staying there. He claimed to have been held for two days during which time the police hanged him from the ceiling, beat him, and poured a jug of hot water on him, burning his skin. After his release, he was treated for fifteen days at the hospital by the same doctor who had previously treated his broken nose. The doctor’s letter does not mention this treatment.

Singh submitted a document from the Shiromani Akali Dal party attesting to his membership. Singh was a farmer, and he testified that he put up posters that supported farmers’ rights. He explained that in 1989 he joined the “Mann group” to keep working for benefits for farmers, having chosen this faction because all others were in favor of the government. Although he claims to have personally met Mann while Mann was campaigning in 1989, Mann was in prison at the time according to the State Department’s Human Rights Report. Singh was unable to point to anything specific that he did to support Mann’s candidacy in the 1989 election, did not know when it was held, and did not vote in that or any other election. He explained that his job was to farm while others would vote. Between his second and third arrests Singh’s political activities consisted of working in a Sikh temple kitchen and pitching tents for a celebration on December 25th.

Singh also submitted a letter from his wife in which she reports that police keep asking for him. His wife and children continue to live in her parent’s house.

The IJ found that Singh had not testified credibly and that the documentation he submitted — the death certificate, the Aggarwal Clinic letter, and his wife’s letter — did not overcome the inconsistencies in his testimony. Among other things, the Id’s decision points to the funeral photographs that show no visible signs of a broken nose or injuries on Singh’s face as he had testified occurred at the hands of the police in January of 1990; the lack of explanation for why the Aggarwal Clinic letter would have been written in English on the date it was supposed to have been written, and if back-dated, made no mention of the fact that Singh was treated by the same doctor in 1995 after his alleged third arrest and mistreatment at the hands of the police; how little knowledge Singh had of political activities in India and the fact that Singh could not have been with Mann when he claimed to have seen or traveled with him; the fact that Singh did not know when the 1989 election took place, did not participate in any national or state elections, and could not explain how the Akali Dal Mann or the Shiromani Akali Dal could accomplish the goal of a separate Sikh state (“Khalistan”) without voting; the incorrectness of the reason given by Singh for choosing the Mann faction because it was not the case that other factions were in favor of the government at the time; Singh’s inability to articulate what type of work he allegedly did for the Akali Dal Mann group; and Singh’s failing to remember when he was first arrested and changing the date of his second arrest to coincide with his father’s death certificate, which caused doubt about whether the second arrest had occurred at all.

The BIA summarily affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7)(2002).

II

The Attorney General has discretion to grant asylum to a “refugee,” defined as an alien unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A) (2000). A “well-founded fear of persecution” requires that the alien’s fear be (1) subjectively genuine and (2) objectively reasonable. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). The subjective component can be satisfied by the alien’s credible testimony of his fear of persecution. Id. The objective component can be satisfied through “credible direct and specific evidence in the record ... that would support a reasonable fear of persecution.” Id. (alteration in original) (citation omitted). This showing can be made by demonstrating past persecution because an alien suffering from past persecution is entitled to a presumption of having a well-founded fear of future persecution. Id. at 967.

Singh argues that the IJ’s credibility finding is not supported by substantial evidence because apparent inconsistencies do not exist and the reasons given are not cogent. In particular Singh contends that he explained why his application was in error about the date of his second arrest and why he did not wear a cast at the funeral. He maintains that the fact that injury is not visible in the photograph does not negate its existence. He also points out that he saw Mann on two occasions, one of which was after the election and not necessarily inconsistent with the fact that Mann was imprisoned. Further, Singh submits that he should not have been found incredible just because he was not politically articulate or could not remember the dates of various aspects of the factual basis of his asylum claim. Finally, Singh argues that the IJ's criticisms of the Aggarwal Clinic letter are misplaced as there is nothing extraordinary about a doctor writing a letter in English or describing only his 1990 injuries.

We must uphold the IJ's findings of fact as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2000); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (holding similarly under now repealed 8 U.S.C. § 1105a(a)(4)). We review adverse credibility findings "under the same highly deferential substantial evidence standard applicable to the denial of asylum." Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000). However, the IJ must provide specific, cogent reasons for reaching an adverse credibility determination, see, e.g., Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003), and minor inconsistencies or factual omissions that do not go to the heart of the asylum claim are insufficient to support it. See, e.g., Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988).

We cannot say that any reasonable adjudicator would be compelled to conclude that Singh's testimony was credible. Singh's testimony that he was in hiding from 1990-1995 was inconsistent with his testimony that he was still in charge of the family farm; Singh got the date of his 1990 arrest wrong on his asylum application; Singh testified that he saw Mann at a time when the country report indicates that Mann was in custody; Singh knew little about the party and could not articulate what kind of work he did for the Akali Dal Mann group; Singh did not participate in elections even though establishing a separate state through the electoral process was the objective of the alleged political activity upon which his asylum claim is based; and Singh incorrectly stated that the Mann group was the only faction not aligned with the government in 1989. Singh's explanations do not account for the implausibility of his being so actively involved in the Akali Dal and the cause of Khalistan that he was persecuted for it. Nor would a reasonable factfinder be compelled to find that the documentary evidence established Singh's eligibility for asylum. The original funeral photograph which the IJ examined did not show injuries of the sort to which Singh testified. While the Aggarwal Clinic letter buttresses Singh's testimony that he was treated for injuries in 1990, the fact that it appears back-dated yet fails to mention Singh's 1995 treatment by the same doctor supports the IJ'5 skepticism about its value. The death certificate of Singh's father shows the date of his death, but indicates nothing else that is helpful to Singh's position.

Finally, we share the dissent's concern that the record should reflect an accurate translation and a faithful transcription of the proceedings. But the dissatisfied party bears the burden of ensuring that translations and their transcription are correct and, if they are not, of properly raising the issue to the reviewing body or court. Singh, through counsel, commented on the translation to the BrA but did not identify any specific response as inaccurate or request that the matter be remanded for clarification. In our court, as the dissent acknowledges, Singh does not challenge the accuracy of the translation, but, in a footnote, suggests that the transcription was problematic. He neither contests any particular portion of the transcript, nor asks the court to remand the matter for clarification.¹ Although the standard for remand for clarification is high, it is attainable: “In the case of an incompetent translation claim, the standard is whether ‘a better translation would have made a difference in the outcome of the hearing.’ ” Perez-Lastor v. INS, 208 F.3d 773, 780 (9th Cir.2000) (citation omitted). Given the numerous specific points on which the IJ found Singh’s testimony not credible, including testimony that was neither confusing nor unintelligible, we cannot conclude that a better translation would have made any difference in the hearing’s outcome.

Absent credible testimony that he was persecuted, Singh failed to establish past persecution or a well-founded fear of future persecution.

PETITION DENIED.

1 . In any event, we lack jurisdiction to review this separate question intimated by the dissent, viz., whether the transcription in this case violated Singh's due process rights. Singh never raised any faulty transcription issue before the BIA. Accordingly, 8 U.S.C. § 1252(d)(1) bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not raised in administrative proceedings below. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).