Surinder Singh v. Holder , 392 F. App'x 583 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SURINDER SINGH, No. 06-72572
Petitioner, Agency No. A072-404-154
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 August 9, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Surinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’s (“BIA”) order that denied his application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). The Immigration Judge (“IJ”) found that Singh was not credible; denied
his application for asylum, withholding of removal, and CAT relief; and ordered
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
him removed. The BIA affirmed. We grant the petition for review and remand
because substantial evidence does not support the IJ’s adverse credibility finding.
See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (holding that we review
adverse credibility findings for substantial evidence).
To support the adverse credibility finding, the IJ cited Singh’s vague and
unresponsive testimony with respect to his political beliefs, his religious beliefs,
and the beatings inflicted on him by the police. An IJ can base an adverse
credibility finding on vague or unresponsive testimony. Singh-Kaur v. INS, 183
F.3d 1147, 1153 (9th Cir. 1999). However, the IJ must provide an alien with an
opportunity to explain vague or unresponsive testimony before the IJ relies on that
testimony as a reason for finding the alien not credible. See Guo v. Ashcroft, 361
F.3d 1194, 1200 (9th Cir. 2004); Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir.
2002). Here, Singh’s vague and unresponsive testimony cannot support an adverse
credibility finding because Singh answered all the questions posed to him, and
neither the government nor the IJ asked Singh to provide a more detailed
explanation of any of his testimony.
The IJ also cited several claimed inconsistencies in Singh’s testimony: the
date of his fourth arrest, the significance of yellow headdresses, the amount of
political activity in which he engaged after 1996, and whether he was a member of
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the village council in 1999. Singh testified that his fourth arrest was in 1999, but
his application listed the date of his fourth arrest as 2000. This minor
inconsistency is insufficient to support an adverse credibility finding. See Vilorio-
Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (“Minor inconsistencies 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.”). There is no evidence in the record that supports the finding that Singh
testified inconsistently regarding the other claimed inconsistencies.
The IJ found Singh’s claim of persecution “inconsistent with the country
conditions” because “the State Department Country Report clearly shows that the
conditions in the Punjab region for Sikhs have improved dramatically.” However,
a State Department report that “describ[es] a general condition of peace in society”
is insufficient to support an IJ’s adverse credibility finding when an alien testifies
that he has experienced past persecution. Shah v. INS, 220 F.3d 1062, 1069 (9th
Cir. 2000). Here, the IJ erroneously relied on a general conclusion stated in a State
Department report to support its adverse credibility finding.
The IJ also found that Singh’s testimony about his inability to provide
identifying documents was not credible. The IJ stated: “this Court is not even sure
who the respondent is. When the Court asked him about birth certificates and why
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he was not able to obtain one, he could not articulate a reason why and his
response in any event was simply . . . not believable . . . nor could he explain why
he was not able to obtain any other identification documents.” But Singh did
explain why he did not have a birth certificate: he was required to give it to the
Indian government when he applied for a passport and the government did not
return his birth certificate. To the extent the IJ disbelieved Singh’s testimony that
he was required to submit his birth certificate to obtain a passport and that the
government did not return his birth certificate, the IJ engaged in speculation and
conjecture, which cannot support an adverse credibility finding. See Kaur v.
Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (“Speculation and conjecture cannot
form the basis of an adverse credibility finding, which must instead be based on
substantial evidence.” (internal quotation marks omitted)). Singh also testified that
he could not get a new birth certificate. The IJ did not ask Singh to explain why he
was unable to get a new birth certificate, and the record contains no evidence
regarding the process for obtaining a new birth certificate in India. Thus, the IJ
lacked any basis in evidence to disbelieve Singh’s testimony.
Finally, the BIA’s finding that “conditions in the Punjab region for Sikhs
have improved dramatically” is insufficient to rebut the presumption that past
persecution will result in future persecution because the BIA did not undertake an
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individualized analysis of how changed conditions would affect Singh’s situation.
See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th Cir. 2003). An alien
who has suffered past persecution “is presumed to have a well-founded fear of
future persecution.” Id. at 997 (internal quotation marks omitted). The
government “can rebut this presumption by showing, by a preponderance of the
evidence, that the conditions in the applicant’s home country have changed such
that he or she no longer has a well-founded fear of persecution.” Id. (internal
quotation marks and brackets omitted). The evidence on which the government
relies “must be tailored to the applicant: Information about general changes in the
country is not sufficient.” Id. (citation and internal quotation marks omitted).
Here, the BIA relied on information about general changes in India. That evidence
is insufficient to rebut the presumption that past persecution will result in future
persecution. See id.We grant the petition for review and remand to the BIA on an open record
for further proceedings consistent with this disposition. See Soto-Olarte v. Holder,
555 F.3d 1089, 1093–96 (9th Cir. 2009); see also INS v. Orlando Ventura, 537
U.S. 12, 16–18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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