Pavittar Singh v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAVITTAR SINGH, No. 08-74212
Petitioner,
Agency No.
v. A098-501-520
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2014*
San Francisco California
Filed September 21, 2015
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.
Opinion by Judge O’Scannlain
Partial Concurrence and Partial Dissent by Chief Judge
Thomas
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SINGH V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal and Convention Against Torture protection on
adverse credibility grounds.
The panel held that the REAL ID Act permits background
documents to serve as the sole basis for an adverse credibility
determination. The panel explained that the immigration
judge permissibly relied on record evidence, including an
Amnesty International report, indicating that the armed Sikh
militancy in India ended in the 1990s, to conclude that
petitioner’s claim of being attacked by Sikh militants in 2005
and 2006 was not plausible.
Concurring in part and dissenting in part, Chief Judge
Thomas agreed with the majority that under the REAL ID
Act, an IJ’s adverse credibility determination may be
supported exclusively by background evidence in the record,
but he dissented from the majority’s decision to uphold the
agency’s adverse credibility determination, because the
agency mischaracterized the background evidence and did not
consider the totality of the circumstances.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. LYNCH 3
COUNSEL
Monica Ganjoo, Ganjoo Law Offices, San Francisco, CA,
filed the brief for petitioner.
Tony West, Assistant Attorney General, U.S. Department of
Justice, Civil Division, Washington, DC, filed the brief for
the respondent. With him on the brief were Stephen J. Flynn,
Assistant Director, and Janette L. Allen, Attorney, U.S.
Department of Justice, Office of Immigration Litigation,
Washington, DC.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide, in this asylum case under the REAL ID
Act, whether an Immigration Judge’s adverse credibility
determination may be supported exclusively by background
evidence in the record.
I
Pavittar Singh, a native and citizen of India, entered the
United States on or about January 4, 2007, as a nonimmigrant
visitor, with authorization to remain in the United States for
six months. However, on April 19, 2007, the Department of
Homeland Security served Singh with a Notice to Appear,
charging him as removable for failure to comply with the
conditions of his nonimmigrant status. Specifically, Singh
was charged as non-compliant because he was employed for
wages at a convenience store without authorization of
Immigration and Customs Enforcement (“ICE”). Singh then
4 SINGH V. LYNCH
sought relief from removal by applying for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”).
A
In due course, Singh appeared before an Immigration
Judge (“IJ”) and testified that he had suffered persecution on
account of his membership in the Nirankari sect of the Sikh
faith. He asserted that on January 16, 1998, terrorists entered
his family’s shop in India, derided his Nirankari beliefs, and
demanded money. Additionally, Singh testified that after he
reported this incident, the police refused to investigate and
instead accused him of harboring Sikh separatists. Singh
claimed he suffered additional police harassment when, on
January 19, 2005, he was arrested, accused of harboring
terrorists at his wedding, and beaten while in custody. Singh
also claimed that on October 16, 2006, he was yet again
accosted by “Sikh terrorists,” who took his property and
threatened to kill him if he supported the Nirankari mission.
He testified that a few days later the police again arrested
him, accused him of supporting “Sikh terrorists,” and beat
him.
B
However, the IJ found Singh’s testimony not credible and
denied his applications for relief. While acknowledging that
Singh testified consistently, the IJ relied on background
evidence in the record to conclude that his testimony was
implausible. The IJ noted that an Amnesty International
report submitted by Singh not only failed to “support his
claim that the armed opposition continues to operate,” but
also, by showing that armed militants were no longer active,
SINGH V. LYNCH 5
undermined his allegation that such militants recently
attacked him. The IJ also found the reports submitted by the
Government further suggested that militant activity had
“ended years ago.” Thus, she found, Singh’s claim that he
was attacked by Sikh militants in 2005 and 2006 was not
plausible.
The Board of Immigration Appeals (“BIA”) dismissed
Singh’s appeal from the IJ’s decision, agreeing with her that
his “account is implausible because the documentary
evidence demonstrates that the armed opposition in Punjab
ended in the 1990’s.” Noting that the BIA must defer to IJ
credibility findings “unless they are clearly erroneous” and
that “[i]mplausible testimony can support an adverse
credibility finding,” the Board agreed with the IJ’s finding
that Singh was not credible.
II
The only issue presented on appeal is whether the IJ’s
adverse credibility determination was supported by
substantial evidence.
A
The standard of review of BIA determinations is well
settled. As we have explained, “[w]hen the BIA conducts its
own review of the evidence and law rather than adopting the
IJ’s decision, our review ‘is limited to the BIA’s decision,
except to the extent that the IJ’s opinion is expressly
adopted.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.
2010) (quoting Hosseini v. Gonzalez, 471 F.3d 953, 957 (9th
Cir. 2006)). However, “when, as here, the BIA’s ‘phrasing
seems in part to suggest that it did conduct an independent
6 SINGH V. LYNCH
review of the record,’ but the BIA’s analysis on the relevant
issues is confined to a ‘simple statement of a conclusion,’ we
‘also look to the IJ’s oral decision as a guide to what lay
behind the BIA’s conclusion.’” Id. (quoting Avetova-Elisseva
v. I.N.S., 213 F.3d 1192, 1197 (9th Cir. 2000)).
Credibility determinations are findings of fact, which are
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Rizk v. Holder, 629 F.3d 1083, 1087 (9th
Cir. 2011); Singh-Kaur v. I.N.S., 183 F.3d 1147, 1149–50 (9th
Cir. 1999). Under 8 U.S.C. § 1252, our task “is to determine
whether there is substantial evidence to support the BIA’s
finding, not to substitute an analysis of which side in the
factual dispute we find more persuasive.” Molina-Morales v.
I.N.S., 237 F.3d 1048, 1050 (9th Cir. 2001) (quoting Marcu
v. I.N.S., 147 F.3d 1078, 1082 (9th Cir. 1998)). Thus, a
credibility determination will only be reversed if “the
evidence not only supports [a contrary] conclusion, but
compels it.” Rizk, 629 F.3d at 1087 (quoting I.N.S. v.
Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)) (alterations in
original).
Singh concedes that because he filed his application after
May 11, 2005, the REAL ID Act governs the determination
of his credibility. See Shrestha, 590 F.3d at 1039.
B
Singh asserts that the adverse credibility determination is
not supported by substantial evidence, because under the
REAL ID Act his specific testimony cannot be discredited
solely by reliance on background documents. Whether the
REAL ID Act permits such background documents to serve
SINGH V. LYNCH 7
as the sole basis for an adverse credibility finding appears to
be a question of first impression. However, it is easily
resolved by the clear language of the Act itself, which
forecloses Singh’s argument.
1
The two cases Singh relies on for support—Zheng v.
Ashcroft, 397 F.3d 1139 (9th Cir. 2005), and Singh v.
Gonzales, 439 F.3d 1100 (9th Cir. 2006), overruled on other
grounds by Maldonado v. Lynch, 786 F.3d 1155, 1163–64
(9th Cir. 2015) (en banc)—are pre-REAL ID Act cases that
do not consider the Act’s significant restriction of appellate
review of credibility determinations.1 See Bingxu Jin v.
Holder, 748 F.3d 959, 964 (9th Cir. 2014) (“The REAL ID
Act ‘significantly restricted’ appellate review of adverse
credibility findings,” and “‘only the most extraordinary
1
Indeed, some of our cases hold that background evidence can support
adverse credibility determinations even in pre-REAL ID Act cases.
Admittedly, Singh is correct that Singh and Zheng hold that “[w]hile an IJ
may use a Department of State Report to discredit a generalized statement
about a country, it may not be used to discredit specific testimony
regarding a petitioner’s experience.” Singh, 439 F.3d at 1110 (citing
Zheng, 397 F.3d at 1143–44).
However, other pre-REAL ID Act precedent has addressed this
question and concluded that country reports are an acceptable basis for
implausibility determinations. In Jibril v. Gonzales, we stated that “a
finding made by an IJ that a petitioner’s testimony is implausible given the
evidence in a Country Report or other objective evidence in the record is
accorded deference.” 423 F.3d 1129, 1135 (9th Cir. 2005) (emphasis
added); see also Jie Cui v. Holder, 712 F.3d 1332, 1338 (9th Cir. 2013)
(citing Jibril for the proposition that “testimony that is implausible in light
of the background evidence can support an adverse credibility
determination” (emphasis added)); Don v. Gonzales, 476 F.3d 738, 743
(9th Cir. 2007) (same).
8 SINGH V. LYNCH
circumstances will justify overturning an adverse credibility
determination.’” (quoting Shrestha, 590 F.3d at 1041));
Jibril, 423 F.3d at 1138 n.1; Kaur v. Gonzales, 418 F.3d
1061, 1064 n.1 (9th Cir. 2005); see also Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165–68 (2d Cir. 2008) (per curiam)
(explaining that the “REAL ID Act freed an IJ” from the
various requirements courts of appeals imposed on credibility
determinations).
2
Moreover, the REAL ID Act explicitly allows the BIA
and IJ to base their credibility determinations on background
evidence in the record. “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on,” among other things, “the
inherent plausibility of [Singh’s] account” and “the
consistency of [Singh’s] statements with other evidence of
record (including the reports of the Department of State on
country conditions) . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
[Singh’s] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Angov v.
Lynch, 788 F.3d 893, 904 (9th Cir. 2013) (explaining that this
Court and the BIA permissibly rely upon State Department
country reports “all the time” (citing 8 U.S.C.
§ 1158(b)(1)(B)(iii))).
The IJ thus acted within the confines of the REAL ID Act
by considering the totality of the circumstances and basing
her credibility determination on the inherent implausibility of
Singh’s account and its inconsistency with record evidence,
including the Amnesty International report. The IJ
considered evidence submitted by Singh and the Government
and found such evidence did “not support [Singh’s] claim that
SINGH V. LYNCH 9
the armed opposition continues to operate.” She noted that
the Amnesty International report affirmatively indicated that
the armed Sikh militancy ended in the 1990s. Ultimately,
based on Singh’s testimony and the documents submitted by
both Singh and the Government, the IJ found implausible
Singh’s account that he was attacked by Sikh militants. The
BIA similarly concluded that Singh’s account was rendered
implausible by the documentary evidence that “demonstrates
that the armed opposition in Punjab ended in the 1990’s.”2
Given the language of the REAL ID Act, the IJ’s finding
and the BIA’s conclusion of implausibility based on record
evidence is permissible.3
2
The BIA based its plausibility finding on two separate factors: (1) the
lack of militant activity in the Punjab region after the mid-1990s; and
(2) the Indian government’s focus on high-level activists, as opposed to
lower-profile or inactive Sikh members such as Singh. The dissent
focuses on the second factor.
We offer two points in response. First, because record evidence
supported the IJ and BIA on the first finding, the second factor is not
dispositive. See Rizk, 629 F.3d at 1087 (quoting Wang v. I.N.S., 352 F.3d
1250, 1259 (9th Cir. 2003)). Second, while the dissent cites experts who
indicated that even low-level activists were in danger, other background
evidence indicated that “several experts have suggested that only those
considered by police to be high-profile militants are at risk.” Because
there is evidence to support either conclusion, we cannot say that the
record compels the conclusion that inactive Sikh members were under
police threat. See id. (quoting Elias–Zacarias, 502 U.S. at 481 n.1).
3
Though unmentioned by the parties, the Eleventh Circuit has
considered the question of whether adverse credibility determinations can
be based solely on background evidence and determined that they cannot,
contrary to our conclusion here. In Xiu Ying Wu v. U.S. Att’y Gen.,
712 F.3d 486 (11th Cir. 2013), a case interpreting the REAL ID Act, the
court concluded that an IJ cannot rely solely on country reports in making
10 SINGH V. LYNCH
C
Our precedent also forecloses Singh’s argument that the
BIA’s decision was based on speculation.
Though Singh is correct that an adverse credibility
determination cannot be based on complete speculation and
conjecture, here the IJ and BIA supported the determination
with specific citations to record evidence. See Part II.A.,
supra; see also Shrestha, 590 F.3d at 1042 (requiring “that
the IJ state explicitly the factors supporting his or her adverse
credibility determination” and avoid “[b]oilerplate opinions”
that “are devoid of statements that evidence an individualized
review of the petitioner’s contentions and circumstances”
a credibility determination, absent a finding as to “demeanor, the
consistency of [the petitioner’s] statements, or some other individualized
reason for questioning her credibility.” Id at 496.
However, the Eleventh Circuit’s reasoning is unpersuasive because
it fails to account for the specific language of the REAL ID Act. The Xiu
Ying Wu panel concluded it could not give State Department reports
“dispositive power” because doing so would “vitiate the individualized
determination” required in adverse credibility decisions. Id. Yet, as noted
above, the REAL ID Act indeed gives such reports “dispositive power”;
that is the unavoidable effect of allowing a “trier of fact” to “base a
credibility determination” on the consistency of an applicant’s claims
“with other evidence of record (including the reports of the Department of
State on country conditions) . . . without regard to whether [such]
inconsistency . . . goes to the heart of the applicants claim.” 8 U.S.C.
§1158(b)(1)(B)(iii).
Further, while Xiu Ying Wu claims that using record evidence as
grounds for finding lack of credibility “would vitiate the individualized
determination” of petitioners’ claims, 712 F.3d at 496, such concern is
unfounded in light of our decision in Shrestha. See Shrestha, 590 F.3d at
1042.
SINGH V. LYNCH 11
(quoting Castillo v. I.N.S., 951 F.2d 1117, 1121 (9th Cir.
1991)); cf. Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1039–40
(9th Cir. 2008) (concluding that an IJ’s implausibility
determination was impermissible when based on the IJ’s pure
speculation, rather than any record evidence).
Further, the BIA did not violate our command that its
“analysis must be reasonable as a whole,” that its decision
must be based on more than “utterly ‘trivial inconsistencies,’”
and that it “give ‘specific and cogent reasons supporting [its]
adverse credibility determination.’” Bingxu Jin, 748 F.3d at
965 (quoting Shrestha, 748 F.3d at 1042).
Here, the BIA explicitly discussed Singh’s testimony
regarding the alleged attacks by terrorists and harassment by
the police and explained why it found that such specific
testimony was undermined by the evidence in the record.
Thus, it sufficiently noted the factors supporting the IJ’s
finding, and evidenced its individualized review of Singh’s
case.
Pursuant to our precedent, we are satisfied that the
adverse credibility determination was properly explained and
supported by substantial evidence.
III
The BIA correctly concluded that because Singh failed to
qualify for asylum, he necessarily fails to satisfy the more
stringent standard for withholding of removal. See Alvarez-
Santos v. I.N.S., 332 F.3d 1245, 1255 (9th Cir. 2003).
Substantial evidence also supports the BIA’s conclusion
that it was not “more likely than not” that Singh would be
12 SINGH V. LYNCH
tortured if he were removed to India. We do not permit an IJ
to use “a negative credibility determination in the asylum
context to wash over the [CAT] claim[,] especially when the
prior adverse credibility determination is not necessarily
significant” to the torture claim. Kamalthas v. I.N.S.,
251 F.3d 1279, 1284 (9th Cir. 2001) (quoting Mansour v.
I.N.S., 230 F.3d 902, 908 (7th Cir. 2000)). However, when a
petitioner’s “claims under the [CAT] are based on the same
statements . . . that the BIA determined to be not credible” in
the asylum context, the agency may rely upon the same
credibility determination in denying both the asylum and
CAT claims. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th
Cir. 2003).
In this case, Singh’s claim under the CAT is based on the
same statements he made regarding his claims for asylum and
withholding of removal. Thus, it was proper for the IJ and
the BIA to rely on the same adverse credibility determination
in denying all of his claims.
IV
Accordingly, Singh’s petition for review is DENIED.
THOMAS, Chief Judge, concurring in part and dissenting in
part:
I agree with the majority that under the REAL ID Act, an
Immigration Judge’s adverse credibility determination may
be supported exclusively by background evidence in the
record. However, I respectfully dissent from the majority’s
decision to uphold the agency’s adverse credibility
SINGH V. LYNCH 13
determination. The IJ and BIA mischaracterized the
background evidence and did not “consider the totality of the
circumstances” as required by 8 U.S.C. § 1158(b)(1)(B)(iii).
I would grant Singh’s petition for review.
I
I agree with the majority that under the Real ID Act, a
petitioner’s specific testimony may be discredited solely by
background evidence in the record. However, an IJ is still
required to consider the totality of the circumstances and to
make an individualized credibility determination that rests on
“specific and cogent reasons.” 8 U.S.C. § 1158(b)(1)(B)(iii);
Shrestha, 590 F.3d at 1042 (“The REAL ID Act did not strip
us of our ability to rely on the institutional tools that we have
developed, such as the requirement that an agency provide
specific and cogent reasons supporting an adverse credibility
determination, to aid our review.”). As a result, it is a rare
case that an IJ is able to rest an adverse credibility
determination on background evidence alone without
violating the other requirements imposed by
§ 1158(b)(1)(B)(iii) and by controlling precedent. Indeed,
this case offers a useful illustration of the perils of relying too
heavily on broad generalizations contained in static country
reports when refuting an asylum applicant’s specific
testimony.
II
Turning to the specifics of this case, substantial evidence
does not support the agency’s adverse credibility
determination. The background evidence in the record does
not discredit Singh’s testimony that he was detained and
14 SINGH V. LYNCH
beaten by the police in 2005 and 2006 and targeted by four
men dressed as Sikh militants in 2006.
The IJ and BIA suggest that Singh’s testimony that he
was detained and interrogated by the Punjab police is not
credible because this background evidence indicates the
Indian government is concerned only with arresting
high-level Sikh militants. This is not an accurate
characterization of the record. A 2003 Bureau of Citizenship
and Immigration Services report submitted into evidence by
the government provides that while some experts believe the
Punjab police will track down only high-profile suspects who
have relocated to another province in India, others believe
that “any Sikh who has been implicated in political militancy
would be at risk anywhere in India.” This report indicates
that it remains an open question whether the police in Punjab
are concerned only with high-profile suspects.
Moreover, the same report corroborates Singh’s
testimony. It cites an expert on religious militancy who noted
that while “Punjab police no longer systematically persecute
Sikhs simply for holding [pro-Sikh independence] views . . .
individual Sikhs are ‘probably targeted’ at times by local
police because of their actual or suspected [pro-Sikh
independence] advocacy, even though high-level officials no
longer see such views as a threat.” The expert further noted
that “[t]here is still widespread harassment of anyone who
expresses separatist sympathies” and that reports of police
detention and physical abuse “seemed plausible given
conditions in Punjab.”
The IJ and BIA further suggest that Singh’s testimony
that he was harassed by Sikh militants in 2006 is not credible
because the background evidence in the record indicates that
SINGH V. LYNCH 15
Sikh militant activity ended in the 1990s. The background
evidence does indicate that widespread, organized activity by
militant Sikhs ended in the 1990s. But it is still plausible that
Singh was harassed by former Sikh militants who
independently engage in criminal activity and who continue
to rob and terrorize the population. Singh testified that he
was robbed by four men dressed like Sikh terrorists who
warned him to stop supporting the Nirankari sect. This
testimony is not necessarily inconsistent with reports that the
majority of armed opposition groups in Punjab are no longer
active.
Even if armed resistance is no longer widespread and pro-
independence Sikhs are no longer the primary targets of
police brutality in Punjab, it is not implausible that at least
some former militants continue to engage in violent criminal
behavior and at least some Sikhs continue to be harassed by
the police for their perceived affiliation with the resistance
movement. Indeed, it is arguably more implausible
that—after more than a decade of conflict—the militants
would suddenly cease all criminal activity and the police
would cease all persecution of Sikh activists.
The IJ and BIA “cherry-pick[ed] solely facts favoring an
adverse credibility determination while ignoring facts that
undermine[d] that result.” Shrestha v. Holder, 590 F.3d
1034, 1040 (9th Cir. 2010). As a result, the IJ’s adverse
credibility determination is not supported by substantial
evidence.
For these reasons, I concur in part and dissent in part.