Malhi v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALJIT SINGH MALHI, No. 23-17
Agency No.
Petitioner, A205-585-946
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2023
San Francisco, California
Before: S.R. THOMAS, BRESS, and JOHNSTONE, Circuit Judges.
Dissent by BRESS, Circuit Judge.
Baljit Singh Malhi, a native and citizen of India, petitions for review of a
Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an order
from an Immigration Judge (“IJ”) (collectively, the “Agency”) denying his
applications for asylum, withholding of removal, and relief under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We
grant the petition and remand to the BIA to remand to the IJ for additional fact-
finding as to Malhi’s credibility under 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1231(b)(3)(c), 1229a(c)(4)(C).
Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872(B.I.A. 1994) and “provides its own review of the evidence and law, we review
both the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir.
2011). We review credibility determinations for substantial evidence. Barseghyan
v. Garland, 39 F.4th 1138, 1142 (9th Cir. 2022)). However, the Agency commits
“legal error[]” when it “fail[s] to give specific, cogent reasons for rejecting . . .
plausible explanations.” Munyuh v. Garland, 11 F.4th 750, 764 (9th Cir. 2021).
1. The REAL ID Act requires credibility determinations to be made
“[c]onsidering the totality of the circumstances, and all relevant factors.” 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C). If the Agency relies on inconsistencies in
making its adverse credibility determination, they must be “something more than
‘[t]rivial inconsistencies that under the total circumstances have no bearing on a
petitioner’s veracity.’” Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011)
(quoting Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). Further, the
Agency must provide (1) “the noncitizen with an opportunity to explain each
inconsistency, although this opportunity can occur through direct or cross-
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examination”; and (2) “a ‘specific and cogent reason for rejecting’ [reasonable and
plausible] explanation[s].” Barseghyan, 39 F.4th at 1143 (quoting Rizk v. Holder,
629 F.3d 1083, 1088 (9th Cir. 2011), overruled in part on other grounds by Alam
v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc)). We require these steps “[i]n
order to . . . make [substantial evidence] review possible.” Ren, 648 F.3d at 1085;
see also Shrestha, 590 F.3d at 1042 (“[T]he REAL ID Act does not give a blank
check to the IJ enabling him or her to insulate an adverse credibility determination
from our review of the reasonableness of that determination.”). If the Agency fails
to do either, the inconsistency may not serve “as substantial evidence to support
the [Agency’s] adverse credibility finding.” Soto-Olarte v. Holder, 555 F.3d 1089,
1091 (9th Cir. 2009).
Malhi is Sikh and a member of the Mann Party. The Agency considered four
instances when Malhi relayed why he came to the United States. Malhi
consistently stated he had been attacked and threatened because of his membership
in the Mann Party. In particular, Malhi detailed an attack in June 2012 which led to
him being hospitalized for several days. Malhi also provided a letter from
Jalandhar Civil Hospital stating he was treated there in June 2012. Malhi further
stated he had been threatened by the Congress Party once through a letter and
several times through phone calls. Although the Government sought and received
an adverse credibility finding, it did not contradict any of these statements of fact
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before the IJ.
Overall, we note that Malhi’s testimony was “overwhelmingly consistent
with . . . his prior statements” and the documentary evidence he provided. Ren, 648
F.3d at 1089. Indeed, the IJ appeared to credit Malhi’s statements that he was
attacked, finding only that it was “unclear” who attacked him. As we have
consistently held, the Agency’s adverse credibility finding must be made based on
“the totality of the circumstances” and the Agency may “not cherry pick solely
facts favoring an adverse credibility determination while ignoring facts that
undermine that result.” Shrestha, 590 F.3d at 1040. The Agency relied on three
potential inconsistencies between Malhi’s four statements in making its adverse
credibility determination. We consider each one below.
First, as to the number of attacks, in Malhi’s statement to border patrol, he
answered affirmatively to two questions about whether his persecutors threatened
his life and attacked him by caning, concluding “I have been attacked twice.” In
his credible fear interview and testimony, Malhi stated he had been attacked once
and had also received a threatening letter.
On cross-examination, the Government asked about this potential
inconsistency. Malhi explained that because he had been nervous, he incorrectly
stated that there had been two attacks rather than distinguishing between the two
primary events (the attack and the threat) that caused him to flee to the United
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States. See Shrestha, 590 F.3d at 1044–45 (“[T]he analysis on review . . . should
recognize that the normal limits of human understanding and memory may make
some inconsistencies or lack of recall present in any witness’s case.”). Malhi’s
statements were not clearly inconsistent because the series of questions may have
caused him to count both the January 2013 threatening letter (in response to the
threat question) and the June 2012 attack (in response to the caning question). See
Barseghyan, 39 F.4th at 1143.
Nevertheless, the IJ stated only that Malhi “was not able to clarify” the
potential inconsistency. Even assuming the statements were inconsistent, this alone
is not a specific and cogent reason for rejecting Malhi’s explanation, and thus the
IJ erred in relying on this potential inconsistency. Id. at 1145; Lai v. Holder, 773
F.3d 966, 973 (9th Cir. 2014).
Second, as to the identity of Malhi’s attackers, in his credible fear interview,
Malhi stated he was attacked by the Congress Party.1 In his declaration and
testimony, he stated he was attacked by the Badal Party and Bharatiya Janata Party
(“BJP”). His declaration addressed that discrepancy, explaining that he had been
nervous, terrified, and not feeling well at his credible fear interview, that he had
1
In his border patrol statement, Malhi stated he was “in danger from the Congress
party.” He did not specifically state who attacked him, so we do not treat his later
statements as inconsistent with his border patrol statement. See Barseghyan, 39
F.4th at 1143.
5 23-17
memory issues associated with what occurred in India, and that recalling those
events caused him to become stressed and confused. On cross-examination, Malhi
further explained that he originally named the Congress Party because they had
threatened him after the attack and continued to threaten his family in India,
neither of which were disputed. The IJ relied on this inconsistency, stating only
that it was “unclear” who attacked Malhi in June 2012, that he was “unable to
reasonably explain” the inconsistency, and that his explanation was
“unpersuasive.”
The IJ erred in considering Malhi’s explanations for this inconsistency. The
IJ failed to consider the explanations Malhi provided in his declaration regarding
the inconsistencies. See Soto-Olarte, 555 F.3d at 1091. Further, in his testimony,
Malhi provided a reasonable explanation for failing to mention the Badal Party and
BJP at his initial interviews, i.e., that he was nervous and more afraid of the
Congress Party given the multiple threats they had sent him and his family. The IJ
provided only summary reasons for rejecting these explanations, and we have
rejected such reasons as failing to meet the specific and cogent standard.
Barseghyan, 39 F.4th at 1145; Lai, 773 F.3d at 973.
Third, as to how Malhi identified his attackers, in his credible fear interview,
Malhi stated his uncle saw his attackers’ car and identified it as belonging to the
Congress Party. In his testimony and declaration, he stated he saw the car and
6 23-17
identified it as belonging to the Badal Party and BJP. Malhi was never given an
opportunity to explain this potential inconsistency, but the IJ nonetheless relied on
it. That was legal error. Barseghyan, 39 F.4th at 1143.
Because the Agency failed to consider the overall consistency of Malhi’s
statements and committed legal error in its consideration of each of the three
potential inconsistencies it relied on, substantial evidence does not support the
Agency’s adverse credibility finding. See Soto-Olarte, 555 F.3d at 1091. We
therefore remand to the BIA to remand to the IJ for additional fact-finding as to the
adverse credibility determination and Malhi’s relief applications as necessary.
2. Because we grant the petition as to the adverse credibility finding, we
also find that the BIA erred in deeming Malhi’s CAT claims waived to the extent
the IJ rejected those claims based on an erroneous adverse credibility
determination. Cf. Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). The
IJ’s reasoning on this point was ambiguous. In considering Malhi’s CAT claims,
the IJ found the harm Malhi suffered did not rise to the level of torture. It is not
clear whether the IJ considered his testimony in making this finding as the IJ
initially stated his testimony would be given “no weight.” On remand, Malhi’s
CAT claims should be reconsidered to the extent the IJ based the denial of them on
the adverse credibility determination.
PETITION GRANTED.
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FILED
DEC 19 2023
Malhi v. Garland, No. 23-17
MOLLY C. DWYER, CLERK
BRESS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent from the decision to grant the petition for review. The
majority’s assertions that the BIA and IJ committed legal error are unfounded.
1. Substantial evidence easily supports the IJ’s adverse credibility
determination. The IJ relied on two core inconsistencies in Malhi’s account as the
basis for finding Malhi not credible. First, Malhi stated in his sworn border
statement that he had been “attacked twice” in India, but he stated in his credible
fear interview, hearing testimony, and written declaration that he had been attacked
once and had also received a threatening letter. Second, Malhi stated in his credible
fear interview that he was attacked by members of the Congress Party, but in his
merits hearing and written declaration he said that he was attacked by members of
the BJP and Badal parties. Malhi also changed his story as to how he recognized his
assailants. Malhi initially asserted that his uncle had seen his attackers’ car and
noted that it belonged to the Congress Party, but Malhi later asserted that he had
personally seen Badal and BJP logos on his attackers’ car.
These were not trivial inconsistencies. Instead, they went to the very
foundation of the persecution claim: who attacked Malhi, how many times, and how
he was able to recognize the perpetrators. These points formed “the crux of his
application for relief.” Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010); see
1
also id. at 1046–47 (“Although inconsistencies no longer need to go to the heart of
the petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless
is of great weight.”). Here, “[i]n light of the total circumstances, [Malhi’s] inability
to consistently describe the underlying events that gave rise to his fear was an
important factor that could be relied upon by the IJ in making an adverse credibility
determination.” Id. at 1047. The majority’s assertion that Malhi’s testimony was
“overwhelmingly consistent” with his prior statements is simply inaccurate.
The majority’s reasons for granting the petition, meanwhile, do not withstand
scrutiny. First, the majority says that Malhi’s statement that he was attacked twice
was not clearly inconsistent with his later statements that he was attacked once
because the series of questions during his border interview could have caused Malhi
to conflate the June 2012 attack and the January 2013 threatening letter. But Malhi
has never argued either here or before the agency that he was confused by the nature
or sequencing of the questioning at the border. Nor does the record support that
conclusion, much less compel it. The border officer asked Malhi “Did they threaten
your life?” to which Malhi replied “Yes, they tried to cane me.” The border officer
then asked, “Did they succeed in caning you?” to which Malhi replied “Yes, I have
been attacked twice.” The clear import of Malhi’s response is that he was attacked
on two occasions. The majority hypothesizes that the “series of questions may have
2
caused” Malhi to confuse attacks with threats, but that speculation hardly justifies
setting aside the IJ’s adverse credibility determination.
Second, the majority concludes that the IJ did not give sufficiently “specific
and cogent” reasons for rejecting Malhi’s explanations about the inconsistencies in
his account. But the IJ need only provide such reasoning if Malhi’s explanations
were “reasonable and plausible.” Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th
Cir. 2022). It is doubtful Malhi’s explanations meet that standard. Malhi said he
only mentioned the Congress Party in his credible fear interview because they
“created more problem[s] for me.” But this makes little sense when Malhi testified
that it was the BJP and Badal party members that physically attacked him. And
while the majority focuses on how Malhi said the Congress Party threatened him, in
fact Malhi said that the threats “were from all the three parties,” again undermining
his assertion that the Congress Party created more problems for him. In addition,
though Malhi’s nervousness could reasonably contribute to Malhi making some
misstatements in his border statement and credible fear interview, Malhi has
provided no plausible explanation as to how his nerves led him to make critical
misstatements about the basic nature of his persecution: how many times he was
attacked, who attacked him, and how he knew who his attackers were.
But even assuming the IJ was required to provide “specific and cogent”
reasons for rejecting Malhi’s explanations, the IJ did so. The IJ specifically noted
3
that Malhi was “able to identify the symbols for each individual party, including the
Congress [P]arty as an open palm, and distinguish this from the symbol for Badal
and BJP.” Because Malhi could tell each party from the others, it was unclear why
he would be inconsistent about who attacked him. The IJ also specifically
acknowledged Malhi’s argument that he was nervous. But the IJ found Malhi’s
explanations “unpersuasive” because Malhi “was not able to clarify” or “reasonably
explain” the inconsistencies in his accounts. That is a more than fair reaction to
Malhi’s scant testimony, and the record certainly does not compel the opposite
conclusion. The IJ’s reasoning was more than sufficient. See Aguilar Fermin v.
Barr, 958 F.3d 887, 892 (9th Cir. 2020) (upholding adverse credibility determination
where IJ found “unconvincing” petitioner’s explanation that she had misspoken
about receiving personal threats because she was “nervous” and had “forgotten”).
Nor, as the majority suggests, did the IJ commit legal error by failing to
consider Malhi’s statement in his written declaration that, when he thinks about
events that happened in India, he starts “feeling very uncomfortable, scared, and
tense, and [his] memory starts to blur.” To start, it is not clear that Malhi offered
this statement as an explanation for either of the two main inconsistencies that the IJ
relied upon in making her adverse credibility determination. Malhi stated in his
declaration that he believed his fear and confusion rationalized “why [he] was not as
complete in explaining the threats as [he] should have been during [the] interview,
4
and only mentioned the one threatening letter.” Malhi did not indicate that these
factors led him to misspeak regarding the number of times he was attacked or the
identity of his attackers. But in any event, Malhi stated in his merits hearing that his
inconsistencies on those points were due to nervousness and depression, and those
explanations were not meaningfully different from the ones he offered in his
declaration. The IJ not referencing the written declaration is thus of no moment.
See Rizk v. Holder, 629 F.3d 1083, 1091 (9th Cir. 2011) (“No express, point-by-
point rejection of [petitioner’s] explanations was necessary.”).
Third, the majority claims that the IJ did not give Malhi the opportunity to
explain the inconsistency in how he recognized his attackers. But Malhi’s
vacillation as to how he knew who was attacking him was part and parcel of his
broader inconsistency regarding his attackers’ identity, which Malhi had ample
opportunity to clarify on cross-examination. The IJ was permitted to reference a
particular aspect of that inconsistency when describing the totality of the
circumstances motivating her adverse credibility determination.
In short, Malhi provided inconsistent testimony on bedrock aspects of his
claim of persecution. We should let the adverse credibility determination stand.
2. As the BIA found, Malhi forfeited his CAT claim by failing to object
to the IJ’s denial of CAT relief before the BIA. See 8 U.S.C. § 1252(d)(1). The IJ’s
denial of CAT relief did not depend on her adverse credibility finding because the IJ
5
also concluded that “the harm suffered by [Malhi] in his case does not arise to the
level of torture as contemplated by the [INA] and the definition of torture.” Yet,
Malhi’s brief to the BIA challenged only the adverse credibility finding and did not
address the IJ’s separate determination that Malhi was otherwise ineligible for CAT
relief. This alone is grounds for denying CAT relief here. But I would also do so
because the IJ’s adverse credibility finding is amply supported.
In sum, I would deny the petition in full.
6