Sharma v. Holder , 457 F. App'x 614 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KUMARI PUSPA SHARMA, No. 07-73710
Petitioner, Agency No. A098-840-445
v.
MEMORANDUM *
ERIC H. HOLDER, JR ., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 14, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Kumari Puspa Sharma, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’s summary affirmance of an Immigration Judge’s
(IJ’s) decision denying her application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1252, we grant the petition for review and remand to the agency for two reasons.
First, the IJ’s assessment of Sharma’s testimony ignored important record evidence
relating to the discrepancy on which the IJ based her adverse credibility finding.
Second, the IJ should not have sought an additional investigation of the documentary
evidence that Sharma submitted to corroborate her claim.
1. The IJ rejected Sharma’s asylum and withholding claims after finding her not
credible. Adverse credibility determinations are reviewed for substantial evidence. Gui
v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). Under this standard of review, the IJ’s
“determination must be upheld if it is supported by reasonable, substantial and
probative evidence from the record.” Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th
Cir. 2006). Our review must consider “the record as a whole.” Singh v. Holder, 638
F.3d 1264, 1270 n.15 (9th Cir. 2011).
Sharma’s asylum declaration states that she was threatened by the Maoists
during a June 2002 incident, one of three incidents that formed the basis for her claims
of past persecution and a well-founded fear of future persecution. During her asylum
interview, however, Sharma stated that she was physically attacked rather than only
threatened during this particular incident. Before the Immigration Court, Sharma
testified in a manner consistent with her declaration that she was threatened but not
attacked in June 2002; she explained that she was confused during the asylum
2
interview and that she had been thinking of a “bigger . . . incident” that occurred later
and did involve physical violence. The IJ found Sharma not credible on the basis of
this discrepancy between her statements before the asylum officer and the otherwise
consistent statements in her declaration and her testimony at the removal hearing.
The IJ does not appear, however, to have considered a crucial part of the asylum
officer’s notes—the sole account of Sharma’s statements in the asylum interview. At
the end of the notes, the asylum officer wrote the following: “I DN think she
understood some Q’s. She DN understand ‘discrepancy’ between test - decla.” We can
reasonably interpret the asylum officer’s abbreviations to infer that he did not believe
Sharma understood his questions regarding the discrepancy between her declaration
and her statements in the asylum interview—the discrepancy that led the IJ to find her
not credible. “Because an adverse credibility determination under the REAL ID Act
must be based on the ‘totality of the circumstances,’” an IJ is required to “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). The IJ here, however, did not consider
the obviously “relevant evidence that tends to contravene” her determination that the
discrepancy between Sharma’s statements undermines Sharma’s credibility. We
3
therefore conclude that the IJ’s adverse credibility determination was based “on less
than the total circumstances in contravention of the REAL ID Act’s text.” Id.
2. In light of her finding that Sharma’s testimony was not credible, the IJ allowed
Sharma to submit additional documentary evidence to corroborate the testimony. The
IJ found that these documents, “taken at face value, . . . do provide significant
corroboration of [Sharma’s] claim.” The IJ nonetheless held that it was “still
incumbent on [Sharma] to undertake any reasonable measures to verify the reliability
of her documentation,” and she drew a negative inference from Sharma’s decision not
to sign a confidentiality waiver that would have permitted the government to conduct
an overseas investigation of the documents. This was error.
An alien’s “[m]ere failure to authenticate documents, at least in the absence of
evidence undermining their reliability, does not constitute a sufficient foundation for
an adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1254 (9th Cir. 2003); see
also Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). The IJ found no evidence
undermining the reliability of the facsimile documents that Sharma submitted; in fact,
she explicitly declined to draw a “negative inference from [Sharma’s] failure to
provide original documents,” given the “great upheaval” in Nepal at the time.
She therefore erred by seeking additional corroboration of the already reliable
corroborating evidence. As we held in Rosas-Castaneda v. Holder, 655 F.3d 875 (9th
4
Cir. 2011), “[t]he plain language of 8 U.S.C. § 1229a(c)(4)(B),” codifying the REAL
ID Act, “authorizes IJs to request corroboration of only testimonial evidence, and
conspicuously excludes the authority to require an alien to corroborate ‘other evidence
in the record.’” Id. at 884. Because the IJ should not have sought an overseas
investigation to corroborate the reliable documentary evidence that Sharma submitted,
Sharma’s refusal to consent to such an investigation should have been immaterial.
* * *
We remand for the agency to reconsider the question of Sharma’s credibility.
The agency’s credibility analysis on remand shall discount significantly the weight of
Sharma’s statements regarding the June 2002 incident in her asylum interview, given
the asylum officer’s indication that Sharma was not able to understand questions
regarding the discrepancy between her statements regarding the June 2002 incident
and her prior declaration. And it shall give due weight to the corroborating evidence
that Sharma submitted, setting aside Sharma’s refusal to authorize the government to
investigate that evidence. The agency may consider whether it is appropriate to
conduct additional evidentiary proceedings, so as to consider any change in country
conditions and any new corroborating evidence that Sharma may be able to provide.
GRANTED and REMANDED.
5