Kulvinder Kaur v. Loretta E. Lynch , 637 F. App'x 391 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KULVINDER KAUR, No. 11-70245
Petitioner, Agency No. A072-129-973
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2016
San Francisco, California
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.
Kulvinder Kaur petitions for review of a Board of Immigration Appeals
(“BIA”) decision affirming the denial of her applications for asylum, withholding
of removal, relief under the Convention Against Torture (“CAT”), and voluntary
departure. We have jurisdiction under 8 U.S.C. § 1252(a), and we grant the
petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The adverse credibility finding, as justified by the BIA, was not supported
by substantial evidence. The BIA cited only two purported inconsistencies in
Kaur’s testimony, both of which are insufficient to support the finding. The first of
these—a witness’s inability to corroborate Kaur’s testimony concerning the death
of her uncle—relies on conjecture about the witness’s conversations with Kaur and
imports cultural assumptions that may not apply to the petitioner and her witness.
Kumar v. Gonzales, 444 F.3d 1043, 1052 (9th Cir. 2006) (holding that an adverse
credibility finding was improperly based on conjecture when the Immigration
Judge determined that it was incredible that the petitioner would not know his
brother’s whereabouts despite their having fled India together).
The second purported inconsistency—Kaur’s conflicting testimony about
which political faction she belonged to—did not go to the heart of the claim, as
required in pre-REAL ID Act cases such as this one. Marcos v. Gonzales, 410
F.3d 1112, 1117 (9th Cir. 2005). Significantly, Kaur claims that she was
persecuted for her involvement in the All India Sikh Student Federation
(“AISSF”), not for her involvement, if any, in Akali Dal. Moreover, her
explanation that the two factions sometimes worked together was improperly
rejected by the BIA, which cited evidence of the factions’ disagreement on certain
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issues, but disregarded evidence of the factions’ agreement on other important
issues.
The BIA also failed to address documentary evidence submitted by Kaur to
support her testimony. See Lin v. Gonzales, 434 F.3d 1158, 1162 (9th Cir. 2006)
(noting that although the trier of fact may find that documentary evidence is not
credible, “the record must include some ‘evidence undermining their reliability,’
such that a reviewing court can objectively verify whether the IJ has a legitimate
basis to distrust the documents.”). Kaur submitted a death certificate corroborating
her testimony concerning her uncle’s death; an affidavit from Ranjit Singh, her
village sarpanch, supporting her testimony that she had been arrested and tortured;
and a letter from the AISSF president confirming that she was a member of the
organization and that she fled India due to harassment by police. The BIA did not
address this evidence even though it supported key points in Kaur’s claim.
PETITION GRANTED AND REMANDED.
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