Jarnail Singh v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JARNAIL SINGH, 
Petitioner, No. 02-74426
v.
 Agency No.
A73-220-243
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 15, 2004—San Francisco, California
Filed April 13, 2005
Before: Betty B. Fletcher, Edward Leavy, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Leavy
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4145
4148 SINGH v. GONZALES
COUNSEL
George T. Heridis (argued) and Earle A. Sylva, Rai and Asso-
ciates, San Francisco, California, for the petitioner.
Dimple Gupta (argued) and Allen W. Hausman, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
SINGH v. GONZALES 4149
OPINION
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 1998, citing persecution by the Indian
police because he supported Sikh separatism. The Immigra-
tion Judge (“IJ”) 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 fol-
lowing: 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
4150 SINGH v. GONZALES
charge of spousal abuse and a promise he made 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 assum-
ing arguendo, the respondent’s testimony to be true, the con-
ditions of India have changed since he left the country.” The
IJ did not make an explicit finding about whether Singh’s tes-
timony, 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 cre-
ated 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
SINGH v. GONZALES 4151
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 respon-
dent’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.
[1] 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 con-
4152 SINGH v. GONZALES
flicted with those statements. Where an asylum applicant is
“denied a reasonable opportunity to explain what the IJ per-
ceived 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 condi-
tion 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. . . . Never-
theless, 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 men-
tioned by his father. See Shah v. INS, 220 F.3d 1062, 1068
(9th Cir. 2000) (stating that if “discrepancies cannot be
viewed as attempts by the applicant to enhance his claims of
persecution, [they] have no bearing on credibility” (citations
and internal quotation marks omitted)). That Singh did not
repeat in his testimony peripheral details that he had already
provided to the agency and that his father included in a sup-
porting affidavit provides no support at all for the conclusion
SINGH v. GONZALES 4153
that Singh was not “arrested on April 3, 1990, taken to the
police station and beaten.”
b. Discrepancies between dates of arrest presented at
Singh’s asylum interview and in his testimony
The IJ concluded that Singh:
testified that he was arrested on April 3, 1990, June
22, 1991, January, 1992, and December 29, 1993.
This testimony is inconsistent with his testimony
before the asylum officer, wherein he told the asy-
lum officer that he was arrested on March 10, 1991,
and in December, 1991.
This adverse credibility finding is based solely on an
alleged discrepancy identified by the asylum officer in his
“Assessment To Refer.”1 For the following reasons, we find
that this document cannot support the adverse credibility
determination.
Singh represented in his asylum application, which he
signed on November 8, 1996, that he was arrested in April
1990, June 1991, January 1992, and December 1993. At his
asylum interview on October 14, 1998, according to the
Assessment To Refer made that day by the asylum officer,
Singh presented
testimony which was not consistent. Applicant’s
declaration indicates that his second and third
arrest[s] were in June 1991 and January 1992; not as
he testified on March 10, 1991 and December 1991.
Applicant’s testimony regarding his third arrest was
also inconsistent, he testified that his third arrest was
in December 1991, then January 1992, then Decem-
1
We have reproduced the Assessment To Refer in its entirety as an
appendix to this opinion.
4154 SINGH v. GONZALES
ber 1993 back to December 1991 and then January
15, 1992. Applicant determined that his third arrest
was on January 15, 1992 after it was pointed out that
he could not have been detained for one month
[from] December 1991 to January 1992 and be
released after the February 1992 elections as he had
testified.
The IJ made only one — albeit imprecise — reference to
the Assessment To Refer before she rendered her final deci-
sion of May 2, 2001, during a brief hearing on March 28,
2001, at which Singh’s asylum application was admitted into
evidence. There is no indication from the record that Singh
received a copy of the Assessment To Refer prior to March
28, 2001, and it is unclear whether he or his counsel received
a copy of the document then, or at any time before the IJ
issued her decision.2 The IJ stated to Singh’s counsel on
March 28, 2001: “I see that [government counsel] handed me
a referral notice wherein your client’s asylum was denied by
the Asylum Office. . . . I’m going to go ahead and mark the
2
At the March 28 hearing, the IJ asked Singh’s counsel whether “you’re
going to ask the Court to review the denial [by the Asylum Office].” In
fact, pursuant to the applicable regulation, Singh’s asylum interview could
not have led to a denial of asylum, but rather resulted in the referral of his
application to the IJ for a de novo hearing. See 8 C.F.R. § 208.14(c)(1) (“If
the asylum officer does not grant asylum to an applicant after an interview
conducted in accordance with § 208.9 . . . in the case of an applicant who
appears to be inadmissible or deportable under section 212(a) or 237(a) of
the Act, the asylum officer shall refer the application to an immigration
judge, together with the appropriate charging document, for adjudication
in removal proceedings . . . .”).
The “Referral Notice” sent to Singh two weeks after his asylum inter-
view stated in bold: “This is not a denial of your asylum application,”
adding that “[t]he determinations [the Asylum Office] made in referring
your application are not binding on the immigration judge, who will evalu-
ate your claim anew.” If, as appears to be the case, Singh was sent only
the Referral Notice, then he would have learned simply that “your claim
was deemed not credible” because: “You provided inconsistent testimony
regarding the dates of your arrests and the lengths of your detentions.”
SINGH v. GONZALES 4155
asylum application as Exhibit 2, dated today and initial it.”
(Emphasis added). The record does not reflect that any other
exhibits were admitted on March 28, 2001. The Assessment
To Refer is, however, included in the administrative record as
part of Exhibit 4, which bears the handwritten date “3/28/01”
along with the IJ’s initials on the “Referral Notice” sent to
Singh (but not on the Assessment To Refer). The IJ’s final
decision of May 2, 2001 states that “[o]n March 28, 2001, the
Service filed the Referral Notice from the Asylum Office,
which has been received as Exhibit 4.” No independent men-
tion is made of the Assessment To Refer, which is character-
ized in the IJ’s decision as Singh’s “testimony before the
asylum officer.”
At his removal hearing, Singh testified, consistent with his
asylum application, that he was arrested on April 3, 1990,
June 22, 1991, January 1992, and December 29, 1993. Neither
the IJ nor the INS3 mentioned at the hearing the asylum offi-
cer’s assertion that Singh had stated otherwise at his asylum
interview. Singh was not asked about whether the asylum
officer’s report of the interview was accurate or, if it was, the
reason for the asserted date confusion.
We need not decide whether any date inconsistency
between the asylum interview and the removal hearing is minor.4
3
On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly-created Department of Homeland Security. See
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). For the
sake of consistency, we refer to the INS in this opinion.
4
The INS’s position is that the asserted inconsistency between the asy-
lum interview and Singh’s testimony regarding the date of the third arrest
goes to the heart of Singh’s asylum claim, because it is at odds with
Singh’s testimony about the February 1992 election boycott. Singh testi-
fied that he was detained for a month in January 1992, and released after
the February election. If Singh was released after the election, he could not
have been arrested in December 1991, as he allegedly told the asylum offi-
cer, and detained for only a month. The date discrepancy if it existed thus
amounted to at most a month. For reasons elaborated below concerning
general principles of date recollection, we are skeptical that such a dis-
crepancy supports an adverse credibility finding, but need not decide
whether it does.
4156 SINGH v. GONZALES
Cf. Bandari, 227 F.3d at 1166 (“[W]e have frequently charac-
terized discrepancies in dates which reveal nothing about an
asylum applicant’s fear of his safety to be minor inconsisten-
cies that cannot form the basis of an adverse credibility find-
ing.” (citation and internal quotation marks omitted)).
Assuming its pertinence, the asserted contradiction of Singh’s
statements at his asylum interview may not be relied upon as
substantial evidence that he is not credible.
[2] Certain features of an asylum interview make it a poten-
tially unreliable point of comparison to a petitioner’s testi-
mony for purposes of a credibility determination. Barahona-
Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001), explained the
significant procedural distinctions between the initial quasi-
prosecutorial “informal conferences conducted by asylum
officers” after the filing of an asylum application, and the
“quasi-judicial functions” exercised by IJs, who preside over
hearings in which “[t]estimony of witnesses is taken under
oath at a transcribed hearing.” Id. at 1120-21. Barahona-
Gomez described the asylum interview as follows: “The offi-
cer meets informally with the applicant, considers the docu-
ments presented with the asylum application, then decides
whether asylum should be granted or whether the matter
should be referred to an IJ for formal adjudication.” Id. at
1120.
It bears noting that the current role of asylum officers in
conducting these interviews is significantly different from
what it was a decade ago:
[I]n 1995, the Attorney General amended the regula-
tions and comprehensively restricted the asylum offi-
cers’ authority over asylum applications. With the
limited exception of nonimmigrants who are pres-
ently in a lawful status, an asylum officer has been
divested of authority to deny an application for asy-
lum and reduced merely to screening and granting all
applications in which the applicant is subject to
SINGH v. GONZALES 4157
removal, or referring the applicant’s case to an
Immigration Judge for an exclusion or deportation
hearing. . . . The amendment of the regulations effec-
tively removed the two principal functions — pre-
paring a written assessment of the claim and
rendering a written decision — that would require,
or at least provide an impetus for, in the majority of
asylum interviews, an asylum officer to keep an
accurate and reliable record of the applicant’s state-
ments during the interview.
In re R-S-J-, 22 I. & N. Dec. 863, 881-82 (BIA 1999) (en
banc) (Vacca, Board Member, concurring in part and dissent-
ing in part) (citations omitted).5
[3] The current regulation applicable to asylum interviews
provides that the “asylum officer shall have authority to
administer oaths,” 8 C.F.R. § 208.9(c), but not that the officer
must take evidence under oath. In this case, there is no evi-
dence that Singh’s representations at the asylum interview
were made under oath. Nothing in the Assessment To Refer
indicates that an oath was administered. Nor was Singh asked
during his removal hearing whether the evidence he provided
to the asylum officer was under oath.6
5
Asylum officers are a creation of the agency:
Congress has not designated either the position of ‘asylum offi-
cer’ or the full scope of authority to be exercised by an individual
that the Attorney General has assigned to act as an ‘asylum offi-
cer.’ An asylum officer’s authority derives principally from the
Attorney General’s authorization to ‘establish a procedure’ for an
alien in the United States to seek asylum.
In re R-S-J-, 22 I. & N. Dec. at 878 (Vacca, Board Member, concurring
in part and dissenting in part) (citing 8 U.S.C. § 1158(a)).
6
For an example of a case in which the BIA was unsure whether an asy-
lum interview took place under oath, see In re R-S-J-, 22 I. & N. Dec. at
864 (remanding for determination of the issue where “[t]he respondent has
not alleged that he was not put under oath by the asylum officer, but there
is no affirmative evidence that an oath was administered”).
4158 SINGH v. GONZALES
[4] In addition, “[u]pon completion of the interview, the
applicant or the applicant’s representative shall have an
opportunity to make a statement or comment on the evidence
presented.” 8 C.F.R. § 208.9(d). Again, in this case the record
does not reflect whether Singh was afforded an opportunity to
comment on the evidence at the end of the asylum interview.
[5] Further, although Singh signed his asylum application,
and later attested to it at his removal hearing, Singh was not,
contemporaneously or at the removal hearing, asked whether
the asylum officer’s summation of his interview was accurate.
At the time of the interview, Singh signed only a notice
acknowledging that he would return to learn the results.
Although asylum officers are sometimes called to testify at
removal hearings to confirm the contents of their notes or
reports, see, e.g., Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.
2004), the INS presented no such testimony here.7
[6] Moreover, there is some reason to question the reliabil-
ity of the Assessment To Refer. At removal hearings, asylum
applicants are provided with translators to ensure due process.
A court-provided translator interpreted at Singh’s removal
hearing, conducted in Punjabi. At asylum interviews, by con-
trast,
[a]n applicant unable to proceed with the interview
in English must provide, at no expense to the Ser-
7
Because Singh has not raised the argument, we do not address whether
the absence of the asylum officer for purposes of cross-examination ren-
dered the Assessment To Refer inadmissible. Cf. Saidane v. INS, 129 F.3d
1063, 1065 (9th Cir. 1997) (holding fundamentally unfair the presentation
of evidence where “the INS made no effort to call an admittedly available
witness and relied instead on that witness’s damaging hearsay affidavit”);
Cunanan v. INS, 856 F.2d 1373, 1374-75 (9th Cir. 1988); see also 8
U.S.C. § 1229a(b)(4)(B) (“[T]he alien shall have a reasonable opportunity
to examine the evidence against the alien, to present evidence on the
alien’s own behalf, and to cross-examine witnesses presented by the Gov-
ernment . . . .”).
SINGH v. GONZALES 4159
vice, a competent interpreter fluent in both English
and the applicant’s native language or any other lan-
guage in which the applicant is fluent. The inter-
preter must be at least 18 years of age. Neither the
applicant’s attorney or representative of record, a
witness testifying on the applicant’s behalf, nor a
representative or employee of the applicant’s country
of nationality . . . may serve as the applicant’s inter-
preter. Failure without good cause to comply with
this paragraph may be considered a failure to appear
for the interview for purposes of § 208.10.
8 C.F.R. § 208.9(g). The asylum officer’s Assessment To
Refer does not mention a translator, yet states that Singh “was
unable to provide any information beyond a short declarative
sentence that the event[s] happened.” We cannot tell — and
nor could the IJ — whether the interview was conducted in
Punjabi or, instead, in English, a language with which Singh
is apparently not comfortable.
Our recent decision in Li illustrates the importance we have
placed on ensuring that sufficient indicia of reliability exist
before an asylum applicant’s airport interview may properly
be used as an impeachment source. Li stated:
We hesitate to view statements given during air-
port interviews as valuable impeachment sources
because of the conditions under which they are taken
and because a newly-arriving alien cannot be
expected to divulge every detail of the persecution
he or she sustained. But here, the IJ heard substantial
evidence from Inspector Westlake [Li’s INS inter-
viewer] about the procedures used to ensure that
interviews were accurately understood and recorded.
Both the INS supervisor and the interpreter would
carefully question and evaluate the alien before the
interview; if any sign of a language barrier was
detected, the interview would be halted until an
4160 SINGH v. GONZALES
appropriate interpreter could be found. After the
interview, the interpreter would review questions
and answers line-by-line with the alien to ensure
there were no translation problems and to correct any
misstatements that may have occurred.
378 F.3d at 962-63 (citations omitted). In this case, by con-
trast, the asylum interviewer did not testify, and the reliability
of Singh’s Assessment To Refer is insufficiently supported by
the record. On the critical question of when Singh’s second
and third arrests occurred, for example, the assessment states
that the asylum officer “pointed out” to Singh that his dates
were inconsistent. With only a written summary, but no tran-
script or contemporaneous notes nor any testimony by the
asylum officer or Singh (as he was not asked), it is impossible
to discern precisely how, when, and in what context this inter-
jection occurred. Without that detail, one cannot sensibly
evaluate Singh’s reaction to the interjection, including
whether he offered an explanation for any discrepancy and
whether he affirmatively changed his story or instead failed to
object to an assertion by the interviewer. Just as the IJ’s asser-
tion in her opinion that there was an inconsistency between
Singh’s testimony and his father’s affidavit concerning
Singh’s participation in the 1992 election boycott, discussed
below, cannot be evaluated without knowing what Singh actu-
ally said, so the asylum officer’s Assessment To Refer is not
sufficient evidence of what Singh said to permit evaluation of
an asserted conflict.8
8
Singh did state in his brief to the BIA “that he was nervous during his
meeting with the asylum officer and that accounts for his errors [during
the asylum interview].” This explanation was made on appeal to the BIA.
There had been no questioning regarding the asserted error at the removal
hearing. At that point, absent a remand, the record could not be amplified
with respect to the details of Singh’s asylum interview, so he could only
“address the credibility question before the BIA” on the basis of the exist-
ing record. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660-61
(9th Cir. 2003) (due process requires as a “constitutional minimum” that
a petitioner be “afforded . . . notice that his credibility was at issue and an
SINGH v. GONZALES 4161
[7] In sum: The Assessment To Refer does not contain any
record of the questions and answers at the asylum interview,
or other detailed, contemporary, chronological notes of the
interview, but only a short, conclusory summary — essen-
tially, an opinion. There is no transcript of the interview.
There is no indication of the language of the interview or of
the administration of an oath before it took place. The asylum
officer did not testify at the removal hearing. Finally, the
applicant was not asked at the hearing before the IJ about the
accuracy of the asylum officer’s report or given any opportu-
nity to explain the discrepancies the asylum officer perceived.
We conclude that under these circumstances, the Assessment
To Refer, standing alone, is not substantial record evidence
supporting the IJ’s adverse credibility ground.
c. Election boycott
The IJ’s decision also stated that Singh’s father
wrote that the respondent was engaged in the elec-
tion campaign of 1991 and boycott movement of
1992, but the respondent testified that he was in cus-
tody prior to the boycott since he gave money to the
Akali Dal Mann movement. The respondent testified
that he was in prison during the boycott and was not
released until after the boycott. Thus, his testimony
is materially inconsistent with his father’s statement
that he was involved in the boycott movement.
[8] There is no such contradiction. Singh testified that he
gave money “to help the people to boycott that [election],”
opportunity to respond to the bases for attack on his credibility”). Given
that limitation, Singh’s lawyer’s argument on appeal concerning unspeci-
fied “errors” during the asylum interview does not constitute an admission
that the Assessment To Refer accurately reflects the content of Singh’s
asylum interview.
4162 SINGH v. GONZALES
and characterized his activities, for which he was arrested, as
“participating” in the boycott movement: “[T]he police
arrested me . . . because I collected funds for the Federation.
. . . [T]hey told them that you told the people, you’re telling
people not to take part and . . . that’s the reason they arrest
you.” The father’s affidavit is not to the contrary. It states that
Singh “actively engaged in the . . . boycott movement of
1992” (emphasis added), not that he himself purportedly boy-
cotted the election, or was in the streets on election day. The
purported inconsistency identified by the IJ thus does not
exist, and does not support the adverse credibility determina-
tion. See Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir.
2002).
d. Discrepancy between Singh’s testimony and his father’s
affidavit with respect to the last arrest
The IJ stated that: “The respondent testified that his last
arrest was December, 1993, whereas his father wrote incon-
sistently that his son was subjected to worse beating and tor-
ture during his last police experience in January, 1994. The
respondent testified he was arrested and beaten for two days
on December 29, 1993.”
Singh’s father’s affidavit does state that Singh’s “last police
experience” was in January 1994.9 Singh testified more spe-
cifically that he was arrested on December 29, 1993, kept in
police custody and tortured for two days, and then imprisoned
for about a month before being released on condition that he
report to the police weekly. According to both Singh and his
father, Singh had a “police experience” in January 1994; the
only discrepancy, such as it is, is that Singh stated that the
9
This affidavit states that Singh was “subjected to worse conditions,
beating and torture” during this detention. The INS argues that Singh’s
father meant “worst,” but, read in context, the affidavit appears to be refer-
ring comparatively to Singh’s brother, who has been granted asylum in the
United States.
SINGH v. GONZALES 4163
“experience” began in the last three days of December, while
the father only mentions January. That the two reports are as
close as they are regarding the timing of the last arrest, even
though both were given several years later, supports rather
than detracts from Singh’s credibility.
[9] More generally, the IJ’s focus on minutely disparate
dates for an arrest that took place seven-and-a-half years
before the removal hearing reflects a flawed approach to cred-
ibility determination. The ability to recall precise dates of
events years after they happen is an extremely poor test of
how truthful a witness’s substantive account is.
All of us have had the experience of having a lucid recol-
lection of a particular event, yet being unable to date the event
within months or even years. Scientific research supports this
observation:
Among the most common failures of source mem-
ory is remembering when something happened. . . .
Victims of repeated physical or sexual abuse, for
example, remember the gist of their experiences.
However, they often confuse the details of particular
incidents, including the time or dates of particular
assaults and which specific actions occurred on
which specific occasion. As events recur, it can
become difficult to remember exactly when specific
actions occurred even though memory for what hap-
pened is clear.
Notwithstanding our inability to accurately report
times and dates, witnesses are commonly asked to do
so.
Deborah Davis & William C. Follette, Foibles of Witness
Memory for Traumatic/High Profile Events, 66 J. Air L. &
Com. 1421, 1514-15 (2001) (footnotes omitted).
4164 SINGH v. GONZALES
[10] The phenomenon of poor date recollection is often
particularly evident in the culturally diverse and trauma-filled
setting of refugee claim adjudication.10 “Events that are cen-
tral to an asylum case in a legal sense may not be what an
applicant perceived to be important when the events hap-
pened. . . . Details such as dates, which people often do not
remember, may be unreasonable to expect.” Michael Kagan,
Is Truth in the Eye of the Beholder? Objective Credibility
Assessment in Refugee Status Determination. 17 GEO. IMMIGR.
L.J. 367, 385-86 (2003); see also Ilene Durst, Lost in Transla-
tion: Why Due Process Demands Deference to the Refugee’s
Narrative. 53 RUTGERS L. REV. 127, 156 (2000) (noting that
certain societies “simply do not think in terms of schedules,
dates, or units of time, as Westerners do; ‘time’ in these cul-
tures is situational, social, or activity-focused”).
The reason for applicants’ lapses in date recollection is that
calendar dates are frequently not part of the direct mental pic-
ture of an event that is recorded in one’s memory. Scientists
have identified a commonly-held and mistaken “chronological
illusion” that considers chronology to be intrinsic to autobio-
graphical memory. See William J. Friedman, Memory for the
Time of Past Events, 113 PSYCHOL. BULL. 44, 44 (1993). In
fact, accurately described, chronology is but a “thin veneer on
the more basic substance of coincidence, locations in recur-
rent patterns, and independent sequences of meaningfully
related events.” Id. at 61-62.
10
As noted in a recent empirical study of Kosovar and Bosnian refugees:
Laboratory and field studies have shown that people recall more
details that are central when an event has a high level of emo-
tional impact, such as armed robbery, than when an event is emo-
tionally neutral. Their recall of central details is, however, at the
expense of their recall of peripheral details. Also, peripheral
detail is more susceptible to disruption after the event.
Jane Herlihy et al., Discrepancies in Autobiographical Memories — Impli-
cations for the Assessment of Asylum Seekers: Repeated Interviews Study.
324 Brit. Med. J. 324, 325 (2002) (emphasis added) (endnote omitted).
SINGH v. GONZALES 4165
People do not walk around with the equivalent of date
stamps in their heads, like the camera feature that produces
photographs identifying the date on which pictures were
taken; if they did, that feature would be unnecessary. See id.
at 58 (“[T]hat internal time tags or conventional dates are reg-
ularly assigned . . . has no support.”). Instead, we “naturally
code long-term memories by the meaning and associations
attached to them, so that the information remembered is an
interpretation, not a true recording.” Kagan, supra, at 385.
Attaching a date to an event has to be accomplished by a sep-
arate mental effort. That effort can occur, for a “small minor-
ity of events,” Friedman, supra, at 58, simultaneously with
the sensory experience, because of a strong desire to remem-
ber the date, of one’s wedding, for example, or of President
Kennedy’s assassination.
[11] More commonly, connecting events to dates occurs
later, through a cognitive process of reconstructing a date
from written records, or by carefully recalling clues — such
as a sequence of events, a seasonal climate, proximate holi-
days, etc. — until one arrives at an ascertainable date, or at
least a signifier from which an event’s date can be calculated
relatively accurately. See Juliet Cohen, Questions of Credibil-
ity: Omissions, Discrepancies and Errors of Recall in the Tes-
timony of Asylum Seekers, 13 INT’L J. REFUGEE L. 293 (2001)
(“[W]e can recall the year in which the dog was lost on the
beach by attaching other memories to that year such as the
age of the dog, the people present at the incident, the emo-
tions experienced, and so on.”). Searching for a discrete date
by “jogging” one’s memory is a method that depends on sift-
ing an unpredictable number of reference points. See Fried-
man, supra, at 59 (“[T]he amount and nature of available
contextual information differ greatly from event to event
because of variation in the initial significance of the event,
loss of information with the passage of time, schematization
of repeated similar experiences, and many other idiosyncratic
influences.”). The process is therefore fraught with potential
inaccuracies, see, e.g., Norman R. Brown et al., The Subjec-
4166 SINGH v. GONZALES
tive Dates of Natural Events in Very-long-term Memory, 17
COGNITIVE PSYCHOL. 139 (1985), in a manner that other types
of memory retrieval — such as considering the relative
recency of sequential events (e.g., an arrest and a later, related
trial) — may not be, absent mental impairment. Consistently
with the phenomenon that most date recollection involves a
reconstructive process prone to inaccuracy, we have held that
“minor discrepancies in dates that . . . cannot be viewed as
attempts by the applicant to enhance his claims of persecution
have no bearing on credibility.” See, e.g., Damaize-Job v.
INS, 787 F.2d 1332, 1337 (9th Cir. 1986). We adhere to that
principle here, and conclude that the IJ’s reliance on her per-
ception of a date discrepancy between Singh’s account of his
last arrest and that given in his father’s affidavit is not a valid
ground for the adverse credibility determination.
----
As we have determined that none of the reasons cited by
the IJ “are valid grounds upon which to base a finding that the
applicant is not credible,” Mendoza Manimbao, 329 F.3d at
658 (citation and internal quotation marks omitted), we need
not address whether the agency’s failure to address Singh’s
explanations for the alleged incongruities affects the validity
of the IJ’s adverse credibility determination. Cf. Kaur v. Ash-
croft, 379 F.3d 876, 887 (9th Cir. 2004) (“An adverse credi-
bility finding is improper when an IJ fails to address a
petitioner’s explanation for a discrepancy or inconsistency.”);
Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004).
Conclusion
[12] None of the four adverse credibility grounds relied
upon by the IJ is supported by substantial evidence. The IJ did
not determine whether Singh’s testimony, if credible, estab-
lished past persecution or a well-founded fear of persecution.
We therefore remand for further proceedings, accepting
Singh’s testimony as credible, to determine his eligibility for
SINGH v. GONZALES 4167
asylum, withholding of removal, and CAT relief. See He v.
Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003); cf. INS v.
Ventura, 537 U.S. 12 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
APPENDIX
ASSESSMENT TO REFER
Applicant is a 33-year-old male native of India and citizen of
India.
Applicant credibly testified he entered the United States with-
out inspection on June 8, 1994, at San Ysidro, CA, and was
admitted as a [sic] and showed by clear and convincing evi-
dence that he timely filed.
Applicant fears that he will be harmed on account of his polit-
ical opinion.
Applicant testified that he was a member of the All India Sikh
Student Federation (Federation). As a member of the Federa-
tion, Applicant collected funds and pasted posters. He was
arrested four times. He was arrested April 3, 1990; March 10,
1991; December 1991; and December 29, 1993. After each
arrested [sic] Applicant was detained for various lengths of
time and was beaten and tortured by the police.
Applicant presented testimony which was not consistent or
sufficiently detailed. Therefore, he was not found to be credi-
ble.
Applicant presented testimony which was not consistent.
Applicant’s declaration indicates that his second and third
arrest were in June 1991 and January 1992; not as he testified
4168 SINGH v. GONZALES
on March 10, 1991 and December 1991. Applicant’s testi-
mony regarding his third arrest was also inconsistent, he testi-
fied that his third arrest was in December 1991, then January
1992, then December 1993 back to December 1991 and then
January 15, 1992. Applicant determined that his third arrest
was on January 15, 1992 after it was pointed out that he could
not have been detained for one month was [sic] December
1991 to January 1992 and be released after the February 1992
elections as he had testified. Applicant also testified that he
left India on June 2, 1994, however, he also testified that after
his last arrest in December 1993 he was detained for one
month and upon his release, he left India within a few days
time. This information is material to Applicant’s claim
because he testified that he was [sic] left India due to these
arrests.
Applicant presented testimony which was not detailed. Appli-
cant was repeatedly asked to describe his arrests and his polit-
ical activities. However, he was unable to provide any
information beyond a short declarative sentence that the event
happened. This information is material to Applicant’s claim
because he testified that he left India due to these arrests
which occurred after he engaged in political activity.
Applicant has not shown there is a reasonable possibility of
suffering the persecution that he fears.
For the foregoing reasons, the applicant is not eligible for asy-
lum status in the United States. Assessment is to refer to the
Immigration Judge.
LEAVY, Circuit Judge, concurring:
I concur in the result. The adverse credibility determination
is not supported by substantial evidence.
SINGH v. GONZALES 4169
This circuit has articulated a rule of law that “Minor incon-
sistencies in the record that do not relate to the basis of an
applicant’s alleged fear of persecution, go to the heart of the
asylum claim, or reveal anything about an asylum applicant’s
fear for his safety are insufficient to support an adverse credi-
bility finding.” Mendoza Manimbao v. Ashcroft, 329 F.3d
655, 660 (9th Cir. 2003). The several citations to medical and
psychological journals that discuss the scientific explanations
for lapses in date recall, none of which are in the record, sug-
gest that our appellate decision is premised on factfinding that
has not been tested by the adversarial process. Furthermore,
the opinion incorrectly suggests that an inaccurate process of
date recollection is the reason underlying our “minor discrep-
ancy” jurisprudence. I would find it sufficient to rely upon our
well-established precedent. By engaging in our own factfind-
ing, we invite another court, or even an administrative body,
to reject our holding as precedent, if, in its superior factfind-
ing process, it finds that we are wrong on the facts.