Rajinder Singh v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJINDER SINGH, 
Petitioner, No. 03-71255
v.
 Agency No.
A76-846-897
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 14, 2006—San Francisco, California
Filed March 10, 2006
Before: Arthur L. Alarcón and M. Margaret McKeown,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge Alarcón
*The Honorable H. Russel Holland, United States District Judge for the
District of Alaska, sitting by designation.
2437
SINGH v. GONZALES 2441
COUNSEL
Hardeep S. Rai, Esq., Law Office of Hardeep S. Rai, San
Francisco, California, for the petitioner.
Norah Ascoli Schwarz, Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the
respondent.
2442 SINGH v. GONZALES
OPINION
ALARCÓN, Circuit Judge:
Rajinder Singh petitions for review of the Board of Immi-
gration Appeals’ (“BIA”) decision to deny his application for
asylum and withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A), and Article 3 of the United Nations Conven-
tion Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, opened for signature Feb. 4, 1985,
S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027,
1028 (1984) (“Convention Against Torture”). We grant the
petition for review because we conclude that the Immigration
Judge’s (“IJ”) credibility findings are not supported by sub-
stantial evidence. We remand for further proceedings to deter-
mine whether, accepting Mr. Singh’s testimony as credible,
he is eligible for asylum or withholding of removal. We deny
Mr. Singh’s petition for relief under the Convention Against
Torture because substantial evidence supports the BIA’s dis-
missal of that claim.
I
Mr. Singh is a native and citizen of India, born on June 10,
1974 in Punjab, India. He is single, not politically active, and
a nonbaptized Sikh. Mr. Singh entered the United States on or
about November 18, 1997, using a false passport. On April
17, 1998, the Government issued a Notice to Appear alleging
that Mr. Singh entered the U.S. illegally. Mr. Singh applied
for asylum, withholding of removal, and relief under the Con-
vention Against Torture on April 24, 1998, and appeared
before the IJ on June 23, 1998 in response to the Notice to
Appear. Through counsel, he conceded removability and
admitted the factual allegations in the notice.
Mr. Singh testified at the August 27, 1998 and December
28, 1998 asylum proceedings that he worked in India as a
driver in his family’s trucking business. On August 15, 1996,
SINGH v. GONZALES 2443
Indian Independence Day, approximately forty members of a
Sikh separatist group approached Mr. Singh and asked him to
transport them to a demonstration in support of an indepen-
dent Sikh state. Mr. Singh testified that he was unsure how
many times he had transported protesters before this. He
agreed to do so on this occasion in exchange for diesel fuel.
On the way to the rally, the separatists shouted “long live
Khalistan, death to the Punjab police” and waived flags bear-
ing the same slogan. Before they reached their destination, the
police stopped Mr. Singh and accused him of “inciting people
against the government.” The police arrested Mr. Singh and
took him to the Jalandhar police station. There, Inspector
Mangl Ram and four other policemen removed Mr. Singh’s
clothes and proceeded to kick and beat him with a leather
strap on his legs and genitals for approximately thirty to forty-
five minutes, until he was unconscious.
During the beating, the policemen interrogated Mr. Singh
about his transportation of Sikh protestors, inciting them
against the government, and having “connections with terror-
ists.” Two days later, the same officers returned around noon
and resumed their interrogation and physical assaults. The
police detained Mr. Singh for seventeen days. Mr. Singh was
released after his father and uncle paid a bribe of 45,000
rupees.
Upon his release, Mr. Singh received medical treatment
from his village doctor. Mr. Singh was hospitalized at Dhillon
Hospital, where he received medication, bandages, and oint-
ments for his wounds. Mr. Singh’s truck also required repairs
because the police had slashed its tires and broken the mir-
rors.
On January 24, 1997, two days before another politically
significant day in India, the police raided Mr. Singh’s parents’
home in the early morning hours looking for Mr. Singh. The
officers warned Mr. Singh’s father that his son “would not be
spared” if he were arrested or if he transported protesters to
2444 SINGH v. GONZALES
another demonstration. Mr. Singh’s father contacted Mr.
Singh and told him that it was not safe for him to return home.
Instead, he went to Patiala, where he stayed with relatives for
about a month.
Mr. Singh paid an agent 600,000 rupees to arrange for his
entry into the United States. The agent first sent Mr. Singh to
Bangkok, Thailand on a seven-month visa. Mr. Singh stayed
at a Sikh temple in Bangkok. When his Thailand visa expired,
Mr. Singh entered the United States illegally. Since Mr. Singh
left India, the police have raided his home at least twice seek-
ing to apprehend him.
The IJ denied Mr. Singh’s asylum application and ordered
him removed to India. The IJ found that Mr. Singh’s testi-
mony was implausible and not credible. Alternatively, the IJ
found that even if Mr. Singh’s testimony were accepted as
truthful, he had not demonstrated that he had suffered past
persecution because of imputed political opinion. The BIA
affirmed in a per curiam decision dated February 25, 2003.
The BIA’s opinion included a short footnote denying Mr.
Singh’s claim under the Convention Against Torture because
he had “not proffered prima facie evidence that it was more
likely than not that he would be tortured if he returned to
India.” Mr. Singh timely petitioned for review on March 24,
2003. We have jurisdiction over this petition pursuant to 8
U.S.C. § 1252(a)(1).
II
[1] Mr. Singh contends that his petition for review should
be granted because substantial evidence does not support the
IJ’s finding that his testimony was not credible. We review
adverse credibility determinations for substantial evidence
and reverse only if the evidence compels a contrary conclu-
sion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992);
Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir. 2004). Although
this standard is deferential, the IJ or BIA must identify “spe-
SINGH v. GONZALES 2445
cific, cogent reasons” for an adverse credibility finding, and
the reasons must be substantial and legitimately connected to
the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.
2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quot-
ing Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996), super-
ceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996),
Pub. L. No. 104-208, 110 Stat. 3009). This means that the rea-
son identified must “strike at the heart of the claim” for asy-
lum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).
[2] “Minor inconsistencies . . . that do not relate to the basis
of an applicant’s alleged fear of persecution, [or] go to the
heart of the asylum claim” do not generally support an
adverse credibility finding. Mendoza Manimbao v. Ashcroft,
329 F.3d 655, 660 (9th Cir. 2003). An IJ must also afford
petitioners a chance to explain inconsistencies, and must
address these explanations. Kaur v. Ashcroft, 379 F.3d 876,
887 (9th Cir. 2004); Chen, 362 F.3d at 618. Finally, an IJ may
not base adverse credibility determinations on speculation or
conjecture not supported by evidence in the record. Ge v. Ash-
croft, 367 F.3d 1121, 1124-25 (9th Cir. 2004); Shah v. INS,
220 F.3d 1062, 1071 (9th Cir. 2000). We independently
review each ground the IJ cites in support of an adverse credi-
bility finding. Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th
Cir. 2005).
A
[3] The IJ found that Mr. Singh’s testimony describing the
beating administered by the police after his arrest was not
credible. She noted that Mr. Singh’s description of how the
police laid him on his back, as well as how two of them “were
holding [him] from behind,” was “contradict[ory].” Mr. Singh
explained, however, that the officers first tied his arms behind
his back, then later untied his arms, laid him out on the floor,
and kicked him. When he tried to sit up, they forced him back
down by sitting on his chest. The IJ did not address Mr.
Singh’s explanation of this alleged inconsistency. Because
2446 SINGH v. GONZALES
“[a]n adverse credibility finding is improper when an IJ fails
to address a petitioner’s explanation for a discrepancy or
inconsistency,” this testimony does not provide substantial
evidence to support an adverse credibility determination.
Kaur, 379 F.3d at 887.
B
[4] The IJ also found that Mr. Singh was not credible
because of perceived inconsistencies in the evidence regard-
ing which family member paid the bribe to secure Mr. Singh’s
release from police custody. Mr. Singh’s uncle alleged in his
affidavit that he paid the bribe. In their affidavits, both Mr.
Singh’s father and the village sarpanch alleged that his father
paid the bribe. Mr. Singh explained that his uncle and father
procured and delivered the money together. Any inconsis-
tency as to who paid the bribe does not go to the heart of Mr.
Singh’s claim. Therefore, it does not provide substantial evi-
dence to support a finding of adverse credibility. See Bandari
v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000) (explaining that
petitioner’s asylum application statement that his father paid
an influential man to gain his release and petitioner’s testi-
mony that his grandfather bribed a government official to gain
his release were not inconsistent statements justifying an
adverse credibility finding).
C
The IJ also based her credibility finding on Mr. Singh’s tes-
timony regarding the threats made during the first police raid
of his home. The transcription of Mr. Singh’s testimony on
direct examination is garbled and includes “indecipherable”
notations at key points. The record shows, however, that Mr.
Singh testified that while making a delivery in Delhi, he cal-
led his father, who told him the police had raided his home
and warned him that it would be dangerous for Mr. Singh to
return to his home. This testimony is consistent with Mr.
Singh’s statements in his asylum application. Mr. Singh
SINGH v. GONZALES 2447
asserted in his application that he believed he would be killed
because the police threatened his parents that if he “was
caught, [he] would be taught a lesson forever.”
[5] On cross-examination, Mr. Singh testified that he
thought the police raided his house because they anticipated
he would participate in the January 26 protests, and warned
his father “if [Mr. Singh] gets arrested again, he will not be
spared.” When pressed as to why he was still afraid after he
did not transport protesters on the 26th, Mr. Singh responded
that he believed he would be in danger not only if he were to
be arrested again, but also if he were to return home. Mr.
Singh’s testimony on cross-examination is consistent with his
direct testimony and the statements in his asylum application
that Mr. Singh’s father told Mr. Singh it was not safe for him
to return to his home. The IJ’s finding to the contrary is not
supported by the record.
D
The IJ further found that Mr. Singh’s statements about his
reasons for entering the United States were “clearly contradic-
tory” and incredible. The IJ stated that Mr. Singh testified he
“told the agent to bring him to the United States, but later said
that the reason he came here is that that was the only place the
agent would bring him.” Mr. Singh testified that he paid an
agent in Delhi, Vijay Kumar, 600,000 rupees to arrange for
his entry into the United States. Mr. Kumar sent him to Bang-
kok, where he stayed for seven months, until his visa expired.
At some point, Mr. Singh instructed the agent that he wanted
to go to America. The agent told Mr. Singh that “the only
place he can take [Mr. Singh] is America,” and that, “the
game I’m playing is that I can take you to America.” Mr.
Singh reiterated in subsequent testimony that he entered the
United States pursuant to his agreement with the agent.1
1
The verbatim record of the asylum proceedings does not demonstrate
that Mr. Singh’s testimony was contradictory:
2448 SINGH v. GONZALES
[6] The IJ also erred in failing to explain how the purported
inconsistency significantly relates to his asylum claim. See
Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir. 2004) (it is
“well-established law” that an IJ must “clarify why [a] pur-
ported discrepancy [is] significant”). Finally, to the extent the
IJ discredited Mr. Singh’s testimony based on his decision not
to seek asylum in Thailand, that is not a proper ground for
undermining credibility. See Ding v. Ashcroft, 387 F.3d 1131,
1139-40 (9th Cir. 2004) (citing Damaize-Job v. INS, 787 F.2d
1332, 1337 (9th Cir. 1986)) (IJ improperly considered the
petitioner’s failure to apply for asylum in Thailand while
there on a business trip).
E
The IJ further supported her credibility findings with per-
ceived inconsistencies regarding Mr. Singh’s driver’s license.
Court: Well, your attorney is trying to find out why you were
so determined to come here that you wouldn’t stay some
place else that was safe.
Singh: The deal with the agent was that he would take me to
American [sic] and the agent has said he’s [sic] game is
to transport people to America. I already had paid him
the money.
Court: So, you can’t tell me why, when you paid him the
money, your instruction was to come to America?
Singh: Yes, Your Honor. . . .
Court: But, you cannot tell me that. Okay.
Singh: Your Honor, I don’t understand the question.
Court: You’ve been asked several times, sir, why it was your
goal to come to this country rather than some other
country. You testified that you told the agent to bring
you here. Why did you tell the agent to bring you here
instead of some other country?
Singh: When I talked to the agent he said the only place he can
take me is America. He said that that’s the game he is
playing.
SINGH v. GONZALES 2449
She noted that Mr. Singh was unclear as to how long the
license was valid and contradicted himself about how the
license arrived from India. She did not explain how these
alleged inconsistencies were significant.
Mr. Singh stated at the first asylum proceeding that his
driver’s license had been lost. At the second asylum proceed-
ing, he produced a driver’s license his family had mailed to
him, which he explained was one of two licenses in his name,
a “heavy” and a “smaller” license. Mr. Singh could not
remember the exact date the “smaller” license arrived in the
mail from India, and eventually explained that he was away
for the Christmas holiday when it arrived.
[7] Mr. Singh was also unclear as to how long his license
was valid. He stated he “[thought] its only good for 10 years,”
but when asked why his license, issued in 1993, appeared to
be valid until 2013, he explained that “[o]ver there nothing is
fixed” and that “it’s up to them for how long . . . it’s going
to be good for.” The IJ was not satisfied by this explanation
and refused to admit into evidence Mr. Singh’s license as
proof of his identity. However, without an indication from the
IJ as to why this testimony is significant, the perceived incon-
sistencies concerning Mr. Singh’s license are minor and can-
not support an adverse credibility finding. See Mendoza-
Manimbao, 329 F.3d at 660; see also Singh, 362 F.3d at 1171.
F
[8] The IJ also found Mr. Singh’s description of the ques-
tions the police asked while beating him not credible because
it was “extremely general.” Mr. Singh testified that the police-
men told him to confess to “whatever was done” and that he
had “connections with terrorists.” This finding rests on specu-
lation about what types of questions the IJ believed Indian
officials would ask in such a situation. This is an impermissi-
ble ground for determining credibility. See Ge, 367 F.3d at
1124-25 (IJ’s personal conjecture about what Chinese authori-
2450 SINGH v. GONZALES
ties would do in a given situation is impermissible basis for
adverse credibility finding). Accordingly, the evidence does
not support the IJ’s finding that this testimony was vague or
confusing, nor does it support an adverse credibility determi-
nation.
[9] The IJ also found Mr. Singh’s testimony about the Sikh
religion to be vague because he provided conflicting and gar-
bled answers when asked about differences between the vari-
ous types of Sikhs. However, Mr. Singh’s claim of
persecution is based on imputed political opinion. His knowl-
edge of the Sikh religion is not relevant to his claim that the
police persecuted him because they believed he was a Sikh or
shared the views of Sikh separatists or terrorists. See
Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985)
(under an imputed political opinion theory, the applicant’s
actual beliefs are irrelevant).
G
The only inconsistency the IJ cites which arguably goes to
the heart of Mr. Singh’s claim is his inability to recall whether
he transported demonstrators to rallies “many times,” as he
initially testified, or only once or twice, as he later testified.
A single supported ground for an adverse credibility find-
ing is sufficient if it “relates to the basis for [petitioner’s]
alleged fear of persecution” and goes to the heart of the claim.
Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (quot-
ing de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.
1997). An inconsistency goes to the heart of a claim if it con-
cerns events central to petitioner’s version of why he was per-
secuted and fled. Id. at 1043 (citing Ceballos-Castillo v. INS,
904 F.2d 519, 520 (9th Cir. 1990)).
However, an inconsistency that concerns the basis for a
petitioner’s claim of persecution will not necessarily support
an adverse credibility finding. In Vilorio-Lopez v. INS, 852
SINGH v. GONZALES 2451
F.2d 1137 (9th Cir. 1988), the petitioner and his cousin testi-
fied that they were chased through the streets of San Salvador
by a right-wing death squad. Id. at 1142. The IJ discredited
the petitioner’s testimony because his testimony conflicted
with his cousin’s as to the year of the incident, the length of
time the men were sheltered from the death squad, and
whether payment was made for their accommodation. Id. at
1139-40. In all other respects, the two men testified consis-
tently. Id. at 1142. Even though the inconsistency concerned
events central to petitioner’s version of why he was perse-
cuted and fled, we rejected it as a basis for the IJ’s adverse
credibility determination, holding that “[m]inor inconsisten-
cies in the record such as discrepancies in dates which reveal
nothing about an asylum applicant’s fear for his safety are not
an adequate basis for an adverse credibility finding.” Id. at
1142 (citing Damaize-Job, 787 F.2d at 1337-38).
[10] Similarly, here, neither the IJ nor the Government
points to any inconsistency in Mr. Singh’s testimony concern-
ing his version of why he was persecuted and fled India, to
wit, his transportation of the protesters on August 15, 1996,
his arrest and subsequent detention and beating by the police,
and the police raid of his home in January 1997. The number
of times Mr. Singh transported protesters reveals nothing
about the events that caused him to fear for his safety. There-
fore, an inconsistency about the number of times Mr. Singh
transported protesters in the past in no way taints Mr. Singh’s
consistent testimony about the events that formed the heart of
his asylum petition. See Jibril v. Gonzales, 423 F.3d 1129,
1134 (9th 2005) (“a person who provides inconsistent testi-
mony on any one matter should still be presumed credible as
to all other matters”) (emphasis in original). “A reasonable
adjudicator would be compelled to conclude that the factual
findings underlying the . . . adverse credibility finding were
not supported by substantial evidence.” Wang v. Ashcroft, 341
F.3d 1015, 1022 (9th Cir. 2003).
2452 SINGH v. GONZALES
H
[11] The IJ also based her adverse credibility determination
on Mr. Singh’s alleged failure to present proper corroborating
documentation. Supporting documentation is required only
when the applicant’s testimony alone is insufficient to support
the claim. Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.
2000). Because the IJ’s credibility determination rested on
insufficient and impermissible grounds, Mr. Singh’s testi-
mony should be deemed credible, eliminating the need for
corroborating evidence. See id.
The IJ found Mr. Singh had not sufficiently proven his
identity, in part because he lacked proper identification docu-
ments. The IJ did not admit Mr. Singh’s birth certificate into
evidence because of perceived irregularities in the document.
The original 1974 certificate appears to state that it was issued
under the 1960 Birth and Death Act. The IJ stated that all
valid Indian birth certificates after 1970 were issued under the
1969 act. The IJ based this conclusion on her recollection of
the State Department Foreign Affairs Manual for India, which
is not in the record. Because the IJ’s statement about Indian
birth certificates is speculation not supported by the evidence,
it is not a proper basis for a credibility determination. See
Shah, 220 F.3d at 1071.
The IJ further noted that the submitted translation of the
birth certificate did not reflect the reference to the 1960 act
found in the original document. However, an irregular transla-
tion cannot alone support an adverse credibility finding. See
Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004)
(even where an applicant submits a potentially fraudulent doc-
ument that goes to the heart of the claim, it cannot support an
adverse credibility finding where the totality of the evidence
weighs in favor of the applicant’s credibility).
The IJ also discredited the affidavits from Mr. Singh’s rela-
tives and the village sarpanch because they contain essentially
SINGH v. GONZALES 2453
the same language. The IJ discussed this perceived problem
with counsel at the hearing, but never asked Mr. Singh to
explain. The IJ also noted that the seals of notarization were
“markedly different,” and stated that a missing “s” at the end
of the word “understand” in the notarial stamp was signifi-
cant. She speculated that because “[n]otaries in Mexico . . .
are lawyers, you know, who have a pretty high standing in the
government,” a notary in India must be of a similarly high
official capacity and would not use a stamp with a typographi-
cal error in it. The IJ did not explain why the differing notari-
zations make them unreliable. In fact, the IJ admitted the
affidavits into the record.
Similarly, although the IJ admitted Dr. Sukhdeep’s affida-
vit confirming Mr. Singh’s postdetention medical treatment,
she commented on the implausibility of an Indian doctor who
wrote and signed his affidavit in English misspelling the word
“knee.” Such speculation about an unknown Indian doctor’s
English proficiency cannot discredit an otherwise proper doc-
ument. See Ge, 367 F.3d at 1124-25 (IJ’s personal conjecture
about what Chinese authorities would do in a given situation
is an impermissible basis for adverse credibility finding).
The affidavits were consistent with Mr. Singh’s testimony
and the statements in his asylum application. They do not sup-
port an adverse credibility determination. See Kaur, 379 F.3d
at 887 (IJ’s credibility determination based on a spelling error
in petitioner’s passport was “personal conjecture about the
manner in which Indian passport officials carry out their
duties” and was not supported by “cogent” reasons).
[12] An overall review of Mr. Singh’s testimony reveals
that the IJ’s adverse credibility determination is not supported
by substantial evidence, and compels reversal of the BIA’s
order affirming the IJ’s decision.
I
The IJ also found Mr. Singh’s claim implausible on the
merits. A finding that testimony is “implausible” indicates
2454 SINGH v. GONZALES
disbelief. An IJ’s comments regarding “implausibility” are
treated as grounds for an adverse credibility finding. Salaam,
229 F.3d at 1238. The IJ’s skepticism as to the plausibility of
Mr. Singh’s account may be a proper basis for finding his tes-
timony is inherently unbelievable, if her logical inferences are
supported by substantial evidence. Id. They are not.
The IJ found there was no rational basis to believe that the
police would pursue someone who only participated once in
a political activity because the “documentary evidence”
showed that the Indian police would pursue only “people who
are known militants or who are heavily committed and
involved” in the separatist movement. The Department of
State Report on conditions in India was admitted into the
record. The IJ stated in her decision that this report indicated
“the Khalistan movement is at a much reduced state from the
way the respondent describes these rallies.”2 While an IJ may
use a Department of State Report to discredit a generalized
statement about a country, it may not be used to discredit spe-
cific testimony regarding a petitioner’s experience. See
Zheng, 397 F.3d at 1143-44 (IJ improperly discredited peti-
tioner’s testimony that the Chinese government forced his
wife to abort her first child because the China country condi-
tions report described no such incidents). The IJ’s reliance on
general descriptions in the State Department report to find Mr.
Singh’s testimony implausible and incredible was thus
improper.
2
The State Department Report describes a major reduction in militant
Sikh terrorism as a result of an antiterrorism campaign in 1991-92. It notes
that “within Punjab, the demand for a separate Sikh state is confined to a
relatively small group of activists.” It further notes that “Hindus as well
as Sikhs and other minorities are arrested, detained, interrogated and
abused in Punjab and elsewhere in India for aiding terrorists of various
political persuasions.”
SINGH v. GONZALES 2455
III
In an alternative holding, the IJ stated that “if respondent’s
testimony were credible . . . I don’t think these facts could
support an asylum claim” and that “[Singh’s] claim would fail
regardless.” The IJ did not provide support for this conclusion
beyond expressing frustration with the inconsistency and
implausibility of Mr. Singh’s claim. Mr. Singh contends that
his testimony and other evidence on the record show past per-
secution, and that the Government has failed to rebut this
showing with evidence of changed conditions in India.
In determining whether an applicant was subjected to past
persecution, we review the record for substantial evidence.
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9th Cir.
2003).
To establish eligibility for asylum, an applicant is required
to demonstrate that he or she is a “refugee” within the mean-
ing of the Immigration and Nationality Act (“INA”). 8 U.S.C.
§ 1101(a)(42)(A). The Attorney General has the discretion to
grant asylum to aliens who qualify as refugees. 8 U.S.C.
§ 1158(b)(1). The INA defines a “refugee” as “any person
who is . . . unable or unwilling to return to . . . [his or her
home] country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A). Physical abuse, such as a beating,
constitutes persecution under this statute. Past persecution
raises a presumption of a “well-founded fear” of future perse-
cution. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir. 2000);
Gaya Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (citing
8 C.F.R. § 208.13(b)(1)(I)). However, there must be evidence
that the mistreatment constituting persecution was “on
account of” one of the statutorily enumerated grounds. Elias-
Zacarias, 502 U.S. at 481-82. The applicant may prove this
nexus with circumstantial evidence, including evidence of the
timing and substance of the persecution. Deloso v. Ashcroft,
2456 SINGH v. GONZALES
393 F.3d 858, 864-65 (9th Cir. 2005); Gafoor v. INS, 231
F.3d 645, 650-52 (9th Cir. 2000) (statements made during
persecution may be evidence of motive); Sangha v. INS, 103
F.3d 1482, 1486-87 (9th Cir. 1997).
[13] Having found that the IJ’s adverse credibility determi-
nation was not supported by substantial evidence, we accept
Mr. Singh’s testimony as true. See Katarina v. INS, 232 F.3d
1107, 1113-14 (9th Cir. 2000) (treating the petitioner’s testi-
mony as true and credible after reversing adverse credibility
determination). As described in Mr. Singh’s testimony, the
timing and circumstances of his arrest and beating point to
two possible motives: imputed political opinion, which is a
statutorily protected ground, or probable cause to believe that
he was engaged in terrorist activities. See Singh v. Ilchert, 63
F.3d 1501, 1509 (9th Cir. 1995) (abuse because of imputed
Sikh separatist ideologies was persecution on account of a
protected ground). The police took Mr. Singh into custody
after seeing him with a group of protesters who were scream-
ing “long live Khalistan, death to the Punjab police.” Mr.
Singh testified that the police accused him of transporting
people to the rally, “inciting people against the government,”
and of being a “terrorist.”
[14] The fact that the police may have acted pursuant to an
anti-terrorism law would not necessarily rule out a statutorily
protected motive. See, e.g., id. at 1508-09 (mistreatment con-
stituted political persecution where Indian authorities exten-
sively abused vague anti-terrorism laws to suppress political
dissent and stamp out secessionist ideologies); See also Zhang
v. Ashcroft, 388 F.3d 713, 719-21 (9th Cir. 2004) (Zhang was
entitled to withholding of removal on account of imputed
political opinion and religious persecution where Chinese
authorities threatened to arrest Zhang for participating in anti-
government activity because he practices Falun Gong, a prac-
tice based, in part, on spiritual or religious principles which
Chinese authorities have banned).
SINGH v. GONZALES 2457
However, where there is evidence of a legitimate prosecu-
torial purpose, foreign authorities enjoy much latitude in vig-
orously enforcing their laws. See Dinu v. Ashcroft, 372 F.3d
1041, 1043-44 (9th Cir. 2004) (legitimate prosecutorial pur-
pose existed for a “heavy-handed” investigation of shootings
during civil uprising); Singh v. Ilchert, 63 F.3d 1501, 1509
(9th Cir. 1995) (“if there is no evidence of a legitimate pro-
secutorial purpose for a government’s harassment of a person
. . . there arises a presumption that the motive of the harass-
ment is political”).
[15] Nor does a mixed motive defeat an asylum claim, as
long as one of the motives is a protected ground. Chanchavac
v. INS, 207 F.3d 584, 592 (9th Cir. 2000). Mr. Singh need not
show that his persecutors were motivated solely or primarily
by a protected ground. See Gafoor, 231 F.3d at 650 (mistreat-
ment motivated by both the applicant’s ethnicity and revenge
was on account of a protected ground although “the protected
ground, by itself, would [not] have led to the persecution”);
see also Nuru v. Gonzales, 404 F.3d 1207, 1228-29 (9th Cir.
2005) (even if desertion constitutes a lawful basis for punish-
ing Nuru, he would still be able to show persecution on a sta-
tutorily protected ground if the punishment were also imposed
in part on account of his political opinion). Here, however,
because of her credibility findings, the IJ did not determine
whether Mr. Singh was arrested because of terrorist activities
or his imputed political beliefs.
IV
[16] Where a court of appeals holds that an IJ’s or BIA’s
adverse credibility finding is not supported by substantial evi-
dence, it must remand the matter to the agency for a consider-
ation of factual questions that may be dispositive of the
petition. INS v. Ventura, 537 U.S. 12, 16 (2002) (holding that
“a court of appeals should remand a case to an agency for
decision of a matter that statutes place primarily in agency
hands”).
2458 SINGH v. GONZALES
It would be improper for this Court to determine in the first
instance whether the evidence supports the conclusion that the
police persecuted Mr. Singh on account of a protected ground,
or that they did so as part of a legitimate anti-terrorist cam-
paign. The IJ’s brief discussion of the logical implausibility
of Mr. Singh’s testimony is not an adequate analysis of this
question because it fails to address whether Mr. Singh has
proven persecution on a protected ground. See Salaam v. INS,
229 F.3d 1234, 1238 (9th Cir. 2000) (implausibility is treated
as adverse credibility finding and is not a standard under
which to review the merits of a persecution finding); see
Lopez, 366 F.3d at 806-07. Were we to determine persecution
and motive on this record, we would “independently creat[e]
potentially far-reaching legal precedent . . . without giving the
BIA the opportunity to address the matter.” Ventura, 537 U.S.
at 17.
V
To establish eligibility for withholding of removal, an
applicant must meet “a more stringent” standard of proof than
is required for asylum. Navas v. INS, 217 F.3d 646, 655 (9th
Cir. 2000). The applicant must establish a “ ‘clear probability’
that he would be persecuted were he to be deported to his
home country.” Id. The applicant must prove “it is more likely
than not that [he or she] will be persecuted on account of a
statutorily-protected ground.” Id. (internal quotation marks
omitted). Just as the evidence on record is insufficient to
decide whether Mr. Singh was persecuted on account of a
protected ground for the purposes of his asylum claim, so too
is this issue unclear for the purposes of his withholding claim.
VI
The BIA held that Mr. Singh failed to present prima facie
evidence of a Convention Against Torture claim. We review
for substantial evidence the factual findings underlying the
BIA’s determination that an applicant is not eligible for relief
SINGH v. GONZALES 2459
under the Convention Against Torture. Zheng v. Ashcroft, 332
F.3d 1186, 1193 (2003).
To be eligible for withholding of removal under the Con-
vention Against Torture, the applicant must show “he is more
likely than not to suffer intentionally-inflicted cruel and inhu-
man treatment.” Nuru v. Gonzalez, 404 F.3d 1207, 1221 (9th
Cir. 2005) (internal citations omitted). The standard for such
claims is distinct from the standard for asylum claims and
withholding of removal. Farah v. Ashcroft, 348 F.3d 1153,
1156-57 (9th Cir. 2003); see Kamalthas v. INS, 251 F.3d
1279, 1283 (9th Cir. 2001) (under the Convention Against
Torture, a petitioner “need not show that he or she would be
tortured ‘on account of’ a protected ground”). The record evi-
dence does not compel a finding that it is more likely than not
that Mr. Singh will be tortured upon returning to India.
[17] Moreover, to be eligible for relief under the Conven-
tion Against Torture, Mr. Singh bears the burden of proving
he “would be unable to live elsewhere in the country safely.”
See Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004)
(petitioner feared mistreatment as retaliation for criticism of
local politicians, but did not produce evidence of his inability
to escape mistreatment by internally relocating and was thus
ineligible for relief). If Mr. Singh’s fear is based on the mis-
taken belief of police in a certain area, he would presumably
be safe in another area of India where the police do not take
him for a separatist. The record contains no evidence that sim-
ply being an apolitical Sikh would cause police to torture Mr.
Singh if they do not believe he is a separatist. Therefore, sub-
stantial evidence supports the BIA’s conclusion that Mr.
Singh has not proffered prima facie evidence of his eligibility
for relief under the Convention Against Torture.
CONCLUSION
We GRANT the petition for review of the BIA’s dismissal
of Mr. Singh’s claims for asylum and withholding of removal
2460 SINGH v. GONZALES
and REMAND for further proceedings to determine whether,
accepting his testimony as credible, he is eligible for relief.
We DENY the petition for review of the BIA’s dismissal
of his claim for relief under the Convention Against Torture.
Costs on appeal are awarded to the petitioner.