Loku Kankanamge Don v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAHAJEEWA RATHNAKUMARA LOKU 
KANKANAMGE DON, SHIYAMALIE
No. 03-74431
AMARATUNGA ACHTHI, MINUL
THANKULA KANKANAMGE, Agency Nos.
Petitioners,
 A79-519-692
A79-519-693
v.
A79-519-694
ALBERTO R. GONZALES, Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 10, 2006—Pasadena, California
Filed February 9, 2007
Before: Kim McLane Wardlaw and Johnnie B. Rawlinson,
Circuit Judges, and Richard F. Cebull,* District Judge.
Opinion by Judge Rawlinson;
Dissent by Judge Wardlaw
*The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
1613
1616 DON v. GONZALES
COUNSEL
Dan E. Korenberg (briefed), Orit Levit (argued), Korenberg,
Abramowitz & Feldun, Sherman Oaks, California, for the
petitioners.
Emily Anne Radford (briefed), David E. Dauenheimer
(argued), Office of Immigration Litigation, United States
Dept. of Justice, Civil Division, Washington, D.C., for the
respondent.
OPINION
RAWLINSON, Circuit Judge:
Petitioners Sahajeewa Rathnakumara Loku Kankanamge
Don (Don), his wife, Shiyamalie Amaratunga Achthi, and
their minor son, Minul Thankula Kankanamge,1 natives and
1
Don is the principal or lead petitioner; his wife’s and child’s petitions
are derivative of his petition. Therefore, their asylum claims succeed or
fail with Don’s claims. See Kumar v. Gonzales, 439 F.3d 520, 521, 525
(9th Cir. 2006).
DON v. GONZALES 1617
citizens of Sri Lanka, legally entered the United States in
2000 as visitors and overstayed their allotted time. They con-
ceded that they are removable, but requested asylum, with-
holding of removal, and protection under the Convention
Against Torture (CAT), based on alleged persecution by the
Liberation Tigers of Tamil Eelam (LTTE), a rebel terrorist
group in Sri Lanka also referred to as the Tamil Tigers. They
also alleged persecution by the Terrorist Detective Bureau
(TDB), a special unit of the Sri Lankan government formed
by the army and police. They petition for review of the deci-
sion of the Board of Immigration Appeals (BIA) adopting and
affirming the adverse credibility determination of the Immi-
gration Judge (IJ) and the concomitant denial of asylum.2
Because substantial evidence supports the adverse credibility
determination, we deny the petition.
I. BACKGROUND
Don alleges that he and his family received threats of phys-
ical harm from both the LTTE and the TDB, because a cook
employed at the restaurant owned by Don was arrested by the
TDB as a suspected LTTE terrorist. Don testified before the
Immigration Judge (IJ) that prior to that incident in January
2000, he and his family were not threatened or harmed by the
government or any terrorist groups, he did not support nor
was he active in any political group, and he did not know that
the cook was a Tamil Tiger until his arrest. Don stated that
subsequently his life was threatened by the LTTE once in per-
son outside of Colombo, and repeatedly by telephone, specifi-
cally warning that Don would be harmed if he did not get the
police to release his former cook. Don speculated that the
LTTE believed he had informed the TDB about the cook’s
LTTE connection, but offered no direct testimony on that
2
The IJ also denied withholding of removal and CAT protection. How-
ever, Petitioner has abandoned these claims by failing to discuss them in
his Opening Brief. See United States v. Williamson, 439 F.3d 1125, 1137-
38 (9th Cir. 2006).
1618 DON v. GONZALES
point. The LTTE never came to Don’s home, and neither he
nor his family was physically harmed.3 Don agreed to try to
get the cook released, and contacted several of his friends at
the police station where the cook was imprisoned. He also
submitted translated copies of several police reports made by
his wife and him reporting death threats from the LTTE.
Don testified that he fled from his home to live in safety
with relatives and, in his absence, the TDB came to his home
twice to question him and requested that his wife convey a
message to him to contact the TDB. Don’s wife testified that
the TDB told her that if her husband did not come to the TDB
headquarters, he would “know what is going to happen.” Don
stated that he fears the TDB because of atrocities committed
by the TDB in 1990, and that he told the Colombo police that
he was afraid because the TDB was looking for him. He fur-
ther testified that he spoke to the TDB by telephone and told
them about the police reports that he made concerning the
LTTE, but he never showed the reports to the TDB.
In support of his application, Don submitted a newspaper
article reporting that an LTTE terrorist working at the Chinese
Restaurant in Padukka was arrested and the TDB was unable
to “interrogate” the unnamed owner of the restaurant, who
fled. Don introduced into evidence a copy of his business
license to establish that he was one of two partners owning a
Chinese restaurant in Padukka. However, the IJ noted a dis-
crepancy between the license date on the translated copy and
the original.
The IJ cited material inconsistencies in Don’s testimony
and the evidence related to the LTTE threats, and found
Don’s account of threats from the TDB to be implausible.
3
Don testified that some “unknown” people were hanging around his
house after he left and “unidentified” persons stoned his house, but these
people were not identified as individuals affiliated with the LTTE or the
TDB.
DON v. GONZALES 1619
Consequently, the IJ found that Don had not “made a credible
and plausible claim for asylum let alone that it is more likely
than not that he would be subjected to persecution on any
grounds should he return.”
The BIA summarily affirmed the IJ’s decision stating: “The
Immigration Judge’s conclusions regarding the inconsisten-
cies in the respondent’s testimony form a sufficient basis for
an adverse credibility finding.” Don timely appealed.
II. STANDARDS OF REVIEW
Where the BIA adopts the decision of the IJ, we review the
IJ’s decision. See Karouni v. Gonzales, 399 F.3d 1163, 1170
(9th Cir. 2005). The standard of review for factual findings
made by the IJ is a deferential substantial evidence standard,
and credibility findings will be upheld unless the evidence
compels a contrary result. Id. (emphasis added). This deferen-
tial standard of review “precludes relief absent a conclusion
that no reasonable factfinder could have reached the agency’s
result.” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.
2005) (citation and internal quotation marks omitted).
III. DISCUSSION
A. Adverse Credibility Determination
[1] When the IJ denies asylum based “on an adverse credi-
bility determination, he must provide specific, cogent reasons
to support his determination . . . [which] cannot be peripheral,
but rather must go to the heart of petitioner’s claim.”4 Desta
v. Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004) (citations and
internal quotation marks omitted). Also, the IJ “must provide
a petitioner with a reasonable opportunity to offer an explana-
4
The REAL ID Act changed this requirement effective for asylum appli-
cations filed after May 5, 2005. See Kaur v. Gonzales, 418 F.3d 1061,
1064 n.1 (9th Cir. 2005).
1620 DON v. GONZALES
tion of any perceived inconsistencies that form the basis of a
denial of asylum.” Ordonez v. INS, 345 F.3d 777, 786 (9th
Cir. 2003).
The IJ based his adverse credibility finding on inconsis-
tency in the evidence presented regarding a crucial date, the
implausibility of Don’s account, and Don’s propensity for dis-
honesty.
1. Inconsistency in Evidence Presented Regarding a
Crucial Date
[2] Don provided the police “a date in writing” that the
cook started working for him six months prior to the cook’s
arrest in 2000, his testimony was that the cook was hired in
1996, and in his interview with the Immigration Officer he
stated that the cook began work in 1998. The IJ questioned
Don about the discrepancies and Don admitted that he lied to
the police in Sri Lanka5 and did not remember the correct date
when he was interviewed by the Immigration Officer. Never-
theless, Don professed to remember the actual date at the hear-
ing.6 The IJ made an adverse credibility finding because of the
lack of consistency about the important detail (date of
employment) regarding the cook. Don’s inability to “state as
to when it was that this man who was the source of him hav-
ing to flee his country started to work for him” went to the
heart of Don’s claim because it involved the very event upon
which he predicated his claim for asylum. See Chebchoub v.
INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (explaining that
inconsistencies in the details of events that form the basis for
the asylum claim, specifically “testimony about the events
5
Admission of prior dishonesty can support an adverse credibility deter-
mination. See Kaur, 418 F.3d at 1065.
6
A statement that one’s memory is better now than it was earlier sup-
ports an inference of untruthfulness. See Kelly v. City of San Jose, 114
F.R.D. 653, 667 (N.D. Cal. 1987) (recognizing that memory is fresher
“closer in time to the subject events.”).
DON v. GONZALES 1621
leading up to [petitioner’s] departure,” go to the heart of the
claim, and support an adverse credibility finding); see also,
Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006)
(affirming that “[a] single supported ground for an adverse
credibility finding is sufficient if it relates to the basis for peti-
tioner’s alleged fear of persecution and goes to the heart of
the claim,” and “[a]n inconsistency goes to the heart of a
claim if it concerns events central to petitioner’s version of
why he was persecuted and fled”) (citations, alteration, and
internal quotation marks omitted).
[3] Although trivial discrepancies in dates cannot support
an adverse credibility determination, see Kaur, 418 F.3d at
1065, the lack of details regarding the event that allegedly
spurred the LTTE and the TDB to threaten Don goes to the
heart of his persecution claim and is not trivial, particularly
since Don’s testimony is vital to his claim that the terrorist
cook was in his employ at the time of the arrest.7 See Leon-
Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir. 1997) (affirm-
ing that “discrepancies relat[ing] to the basis for [an] alleged
fear of persecution . . . support [a] negative credibility find-
ing.”) (citations omitted); see also Singh, 367 F.3d at 1142-43
(upholding adverse credibility finding where discrepancy
about date of key event “caused doubt about whether the
[event] had occurred at all”).
7
Don submitted a newspaper article which reported that a LTTE terror-
ist was arrested at a Chinese restaurant in Padukka and the owner fled
before the TDB could interrogate him. Only Don’s testimony identified
the terrorist as his cook and himself as the owner of the specific Chinese
restaurant referred to in the article. However, the business license submit-
ted by Don indicated that there were two owners of a Chinese restaurant
in Padukka, and the IJ specifically inquired about discrepancies in the
character of the business and the license date. When documentary evi-
dence offered to support a claim is questionable, an adverse credibility
determination is supported. See Singh v. Ashcroft, 367 F.3d 1139,1143
(9th Cir. 2004) (refusing to credit documents that appeared back-dated, did
not show the claimed injuries and omitted described medical treatment).
1622 DON v. GONZALES
[4] Don’s assertion that lying about the employment date
did not enhance his persecution claim and is therefore not rel-
evant to a credibility determination is unpersuasive. Although
generally, if the inconsistency does not “enhance” the appli-
cant’s persecution claim, it will not be relevant to the credibil-
ity determination, see Lin v. Gonzales, 434 F.3d 1158, 1165
n.2 (9th Cir. 2006), “when inconsistencies that weaken a
claim for asylum are accompanied by other indications of dis-
honesty — such as a pattern of clear and pervasive inconsis-
tency or contradiction — an adverse credibility determination
may be supported by substantial evidence.” Kaur, 418 F.3d at
1067.
The dissenting opinion excuses this critical discrepancy by
referencing Don’s “explanation that he lied to police in Sri
Lanka regarding the cook’s hiring date because he was afraid
for his life and he did not want the police to accuse him of
being affiliated with the LTTE.” Dissenting Opin., p.1632.
However, this excuse does not explain why Don provided dif-
ferent dates to the asylum officer and to the IJ. Contrary to the
dissenting opinion’s argument, dissenting opin., p.1632, the IJ
explicitly rejected Don’s testimony because of the IJ’s conclu-
sion that the discrepant dates given by Don were “critical
facts” that prevented a “positive credibility finding.” The fact
that the IJ admitted the referenced newspaper article and busi-
ness license into evidence does not mean that the IJ retreated
in any way from his adverse credibility determination. Noth-
ing in the IJ’s decision suggests otherwise.
Our colleague in dissent describes the majority’s reliance
on Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), as “mis-
taken” and “misplaced.” Dissenting Opin., pp.1633-34. How-
ever, in Singh, 439 F.3d at 1108, we articulated the
unremarkable principle that “[a]n inconsistency goes to the
heart of a claim if it concerns events central to petitioner’s
version of why he was persecuted and fled.” The same prem-
ise may be found in other cases cited by the majority, which
are not questioned in the dissenting opinion. See Singh v. Ash-
DON v. GONZALES 1623
croft, 367 F.3d 1139, 1142-43 (9th Cir. 2004); see also Leon-
Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir. 1997).
[5] The approach taken in the dissenting opinion amounts
to an impermissible re-weighing of the evidence. See Singh v.
INS, 134 F.3d 962, 969 n.14 (9th Cir. 1998) (“[W]e may not
reweigh the evidence . . . We merely determine whether the
evidence compels such a conclusion.” (emphasis in the origi-
nal)). The IJ specified “other indications of dishonesty,”
including lying to the police and to the LTTE. The evidence
does not compel a finding that the IJ impermissibly relied on
these “indications of dishonesty” in making his adverse credi-
bility determination. See Karouni, 399 F.3d at 1170 (explain-
ing that adverse credibility determinations must be upheld
“unless the evidence compels a contrary result.”) (citation
omitted).
2. Implausible Story of Fearing the TDB
[6] The IJ pointed to other objective evidence in the record
that eroded Don’s credibility, particularly Don’s implausible
account of feared persecution from the TDB, a Sri Lankan
combined police and army force. The IJ considered Don’s
story implausible because Don had relatives in the police
department and had gone to the police station to report threats
from the LTTE. The record further indicates that Don con-
tacted friends who could influence the TDB to release the
cook, and spoke to the TDB by telephone, describing filed
police reports addressing the LTTE threats. These interactions
with the TDB undermine Don’s claim that he was evading the
TDB. Also, if he feared the TDB, it is implausible that he
would bring attention to himself by telling the police in
Colombo that he feared the TDB because the TDB was look-
ing for him. Substantial evidence supports the IJ’s adverse
credibility determination on this point. See Jibril v. Gonzales,
423 F.3d 1129, 1135 (9th Cir. 2005) (noting that “testimony
that is implausible in light of the background evidence can
1624 DON v. GONZALES
support an adverse credibility finding”) (citation, emphasis,
and internal quotations marks omitted).
The dissenting opinion also takes issue with the implausi-
bility determination made by the IJ, primarily on the basis that
the record does not support the finding that Don had friends
in the police department who could influence the TDB. Dis-
senting Opin., p.1645. Yet, ten pages earlier the dissenting
opinion expressly references the fact that Don contacted his
friends in the local police to get the cook released.
The dissent essentially contends that the country reports
and other evidence compel the conclusion that the local police
have no influence with the TDB. If this is the case, then why
did Don seek the help of the local police to earn the cook’s
release, even though the cook was arrested by the TDB?
Moreover, if the cook was arrested by the TDB, why was he
being held in a jail where Don believed his friends in the local
police might have influence? Respectfully, the dissent makes
a number of points that may well have led a majority of this
panel to conclude differently than the IJ, were we reviewing
the matter de novo. However, we cannot say that the evidence
compels a contrary result.
3. Propensity for Dishonesty
The IJ found that Don had a “propensity for not telling the
truth.” Don admitted lying to the Sri Lankan police and to the
LTTE, because he was afraid of what would happen if he told
the truth. See Kaur, 418 F.3d at 1065 (concluding that “[i]t
strains credulity to hold that the evidence presented at the asy-
lum hearing compels us to find Kaur believable for the sole
reason that she admitted to being a liar.”); see also, Garrovil-
las v. INS, 156 F.3d 1010, 1014 (9th Cir. 1998) (“If the incon-
sistency were accompanied by other indications of dishonesty,
we might deem the BIA’s finding justified.”); Kaur, 418 F.3d
at 1066 (“[W]hen the inconsistency is accompanied by other
indications of dishonesty, such testimony might in fact sup-
DON v. GONZALES 1625
port an adverse credibility finding.”) (citation, alteration and
emphasis omitted). “[I]t is incumbent upon the IJ to view each
portion of an alien’s testimony, not solely as independent
pieces of evidence with no bearing on the testimony as a
whole, but in light of all of the evidence presented.” Id.
[7] The dissenting opinion chastises the majority for failing
to adequately explore the motivations for Don’s untruths. Dis-
senting Opin., p.1637. However, the IJ did not act inappropri-
ately in questioning whether Don feared the police, when his
relatives and friends worked there. In addition, Don insisted
that he did not lie to the LTTE even though he previously tes-
tified that he lied to the LTTE for the purpose of “buying
time.”
In sum, the majority opinion follows the extremely deferen-
tial standard of review that guides our analysis. Because we
are not compelled to reach a conclusion contrary to that of the
IJ, we must deny the petition. See Karouni, 399 F.3d at 1170.
B. Adequate Consideration of All Relevant Evidence
[8] Citing Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th
Cir. 1984), Don asserts that the IJ abused his discretion by not
adequately considering all relevant evidence, including the
newspaper article about the cook’s arrest, and the country
reports. However, the IJ accepted the newspaper article into
evidence, discussed it with Don, and referenced it in his deci-
sion. The IJ also admitted the country reports into evidence,
heard testimony from Don’s wife that the LTTE remained a
strong terrorist group that “can kill everyone in the family,”
and accepted the fact that the LTTE was still an active terror-
ist group in Sri Lanka. Thus, the IJ considered the relevant
facts presented by the article and the country reports in con-
formance with Don’s assertion “that the LTTE and TDB can
still pose a considerable threat” generally. The country reports
and the article do not, however, support Don’s contention that
the LTTE and TDB are a considerable threat to him person-
1626 DON v. GONZALES
ally. See Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.
2000) (recognizing that a claim based solely on general civil
strife or widespread random violence is not sufficient to
establish an objective fear of future persecution).
[9] The IJ adequately considered all relevant evidence in
his decision, as he specifically acknowledged, inter alia, the
facts and circumstances reflected in the newspaper article and
the country reports admitted in evidence. See Lopez v. Ash-
croft, 366 F.3d 799, 807 (9th Cir. 2004) (affirming that “the
[IJ] does not have to write an exegesis on every contention.
What is required is merely that it consider the issues raised,
and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and
not merely reacted.”) (citation and alteration omitted). The IJ
adequately articulated his decision, and did not abuse his dis-
cretion by failing to interpret the evidence in the manner
advocated by Petitioner.
IV. CONCLUSION
[10] Although a reasonable factfinder could have found
Petitioner credible, no such finding is compelled by the evi-
dence. Because a reasonable factfinder could have reached
this result, we must uphold the IJ’s decision. See Thangaraja,
428 F.3d at 874.
PETITION DENIED.
WARDLAW, Circuit Judge, dissenting:
I respectfully must dissent from the majority in this particu-
larly compelling case for asylum by a refugee from Sri Lanka,
a country our State Department describes as rife with persecu-
tion of its citizens by both the government and terrorist orga-
nizations. Don had no choice but to flee Sri Lanka with his
DON v. GONZALES 1627
wife and two-year-old baby, leaving behind the rest of his
family and two successful businesses, to escape persecution
by both the Terrorist Detective Bureau (“TDB”), a govern-
ment security agency, and the Liberation Tigers of Tamil
Eelam (“LTTE”), an extremely powerful and violent terrorist
group.
After Moorthi Sennan, a cook in Don’s restaurant, was
arrested for being a suspected terrorist, both the LTTE and the
TDB harassed and threatened Don and his family. Don
reported the threats to local police and asked for protection,
but the local police did nothing except warn Don to be care-
ful. The LTTE accused Don of being the one who turned
Moorthi over to the authorities and threatened to kill Don and
his family if Moorthi was not released in one week. Don
understandably promised the LTTE he would do whatever he
could to free Moorthi. Don filed another report with the local
police and then went into hiding. According to neighbors,
Don’s house was ransacked and the TDB came to his home
to arrest him for aiding and harboring a terrorist. Based on the
reputation of the TDB, Don believed that the TDB would
“torture him endlessly” trying to get information about the
LTTE. Don was caught in an impossible situation: The terror-
ists were threatening to kill him for cooperating with the gov-
ernment security forces, and the government security forces
were accusing him of aiding the terrorists.
The evidence in the administrative record compels the find-
ing that Don’s account of being persecuted by both the TDB
and the LTTE is truthful. His testimony is corroborated by
undisputed documents, as well as State Department Country
Reports. Sadly, for Don and his family, the Immigration
Judge disregarded the record, instead basing his findings
largely on what he has gleaned from watching American televi-
sion.1 The IJ impermissibly based his adverse credibility find-
ing on: (1) a minor inconsistency regarding the hiring date of
1
The IJ even refers to the “male respondent,” Don, as the “main actor.”
1628 DON v. GONZALES
the cook, even though the events leading to Don’s persecution
began when the cook was arrested, not hired; (2) a general-
ization that Don has a propensity for dishonesty which the IJ
based on Don’s having lied to the police about Moorthi’s hir-
ing date to minimize his association with a suspected terrorist
and Don’s promise to the LTTE that he would try to get
Moorthi released, which he failed to fulfill; and (3) a finding
that Don’s account is implausible because “assuming every-
thing this man says is true,” everyone involved should have
been able to “sit down at a table” and straighten things out
like they do on American television.
A review of the entire record compels the finding that
Don’s testimony is credible.2 The majority, by erroneously
concluding that substantial evidence supports the IJ’s adverse
credibility decision, places our court’s imprimatur on a
sloppy, illogical and barely coherent six-page IJ opinion.
Because “each of the IJ’s . . . proffered reasons for an adverse
credibility finding fails,” Kaur v. Ashcroft, 379 F.3d 876, 890
(9th Cir. 2004), and not one goes to the heart of Don’s asylum
claim, see Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.
2004), we should reverse the negative credibility finding and
remand to the BIA for a determination of whether Don is eli-
gible for asylum, taking his testimony as true.
A. Inconsistent Hiring Date of the Cook
The IJ primarily relied upon the inconsistency in the hiring
date of Moorthi, the cook, to support his adverse credibility
determination. However, discrepancies as to Moorthi’s hiring
date do not go to the heart of Don’s asylum claim because the
key event triggering Don’s persecution by the LTTE and the
2
The majority accuses the dissent of “reweighing” the evidence. I agree
that reweighing the evidence would be improper; however, it is quite
proper to review the entire record, including evidence admitted by the IJ,
such as the newspaper article and Don’s business license demonstrating
the truth of his testimony, in applying the proper legal standard.
DON v. GONZALES 1629
TDB was Moorthi’s arrest in January 2000, not the date he
was hired, which was four years earlier.
Before Moorthi’s arrest, Don had no inkling of Moorthi’s
alleged involvement with the LTTE. As the IJ himself states:
Neither of the two adult respondents had any politi-
cal activity, were never arrested and never physically
harmed or mentally abused. There may have been
some mental fear in there but the truth is that they
had nothing to fear at before an event in January
2000.
Thus, it was only after Moorthi was arrested that Don’s
troubles with the LTTE and the TDB began, as the IJ seems
to recognize. One week after Moorthi was arrested and
charged, the LTTE stopped Don’s car and threatened him
with injury if he did not get the cook released from custody.
The LTTE also stated in a threatening phone call that it knew
Don was the one who reported Moorthi to the police, and that
he and his family would suffer the penalty of death for his
betrayal. Aware of the LTTE’s lethal reputation, and afraid
for his life and the lives of his family, Don responded that he
would try to free Moorthi. Don contacted some people he
knew in the local police, but was unable to get Moorthi
released. After receiving threatening phone calls from the
LTTE twice a week for several weeks, Don moved in with
friends. However, his wife remained at home and continued
to receive calls from the LTTE, who threatened to kill Don if
Moorthi was not released.
Two months after Moorthi’s arrest, the TDB came to Don’s
house and told his wife that Don should come to the TDB
headquarters for questioning. Because Don was afraid of the
TDB, he did not go to the TDB headquarters, but rather
reported what had happened to the local police at the
Colombo police headquarters, accompanied by his wife’s
brother-in-law, who was a policeman. On the advice of
1630 DON v. GONZALES
friends, Don told the police that the cook had only worked for
him for a short period of time, fearing that if he revealed that
the cook had worked for him for several years, he would be
in even more danger because the police might suspect that he,
too, was affiliated with the LTTE. Don and his wife then went
to stay at his sister’s house, 125 miles away from his home.
Despite the IJ’s contrary finding, it can reasonably be inferred
that both the LTTE and the TDB came to Don’s home. Some
“unknown” persons suspected to be affiliated with the LTTE
stoned Don’s house and hung around his restaurant. Mean-
while, neighbors reported that the TDB surrounded his house
to arrest him, and then questioned his father about his where-
abouts. Six months after the cook was arrested, Don obtained
tourist visas from the United States Embassy and fled Sri
Lanka.
At his March 12, 2002 hearing before the IJ, Don testified
that in a previous interview with an asylum officer, he had not
correctly remembered the date Moorthi was hired. Why
would he? Hiring the cook was not a significant event among
the series of events leading to his petition for asylum. Yet, the
IJ seized upon the discrepancy between hiring dates told to
the Sri Lankan police, the asylum officer, and the IJ, to find
Don not credible:
It seems to me a simple factor to state as to when it
was that this man who was the source of him having
to flee his country started to work for him. But for
some reason he has not been able to be consistent
with that particular fact. Therefore, I do not make a
positive credibility finding for him . . . .
One can hardly imagine a “discrepanc[y]” that goes less to
the heart of Don’s asylum claim than this one. Chen v. Ash-
croft, 362 F.3d 611, 617 (9th Cir. 2004). “Minor inconsisten-
cies that reveal nothing about an asylum applicant’s fear for
his safety are not an adequate basis for an adverse credibility
finding.” Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996)
DON v. GONZALES 1631
(citation and internal quotation marks omitted). While the
substantial evidence standard is deferential, the IJ must point
to a “specific and cogent” reason supporting an adverse credi-
bility finding, Alvarez-Santos v. INS, 332 F.3d 1245, 1254
(9th Cir. 2003), and “such reason must be substantial and bear
a legitimate nexus to the finding,” Salaam v. INS, 229 F.3d
1234, 1238 (9th Cir. 2000) (citation and internal quotation
marks omitted). Moreover, “if [a] discrepanc[y] ‘cannot be
viewed as [an] attempt[ ] by the applicant to enhance his
claims of persecution [it] ha[s] no bearing on credibility.’ ”
Chen v. INS, 266 F.3d 1094, 1100 (9th Cir. 2001) (quoting
Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986)),
overruled on other grounds by 537 U.S. 1016 (2002), adverse
credibility determination aff’d on remand, 326 F.3d 1316 (9th
Cir. 2003).
When compared to date inconsistencies that we previously
have found inconsequential, the IJ’s legal error in finding that
the hiring date discrepancy went to the heart of Don’s asylum
claim is obvious. See Zheng v. Ashcroft, 397 F.3d 1139, 1147
(9th Cir. 2005) (as amended) (finding that discrepancy in date
of forced abortion was a minor inconsistency); Wang v. Ash-
croft, 341 F.3d 1015, 1021-22 (9th Cir. 2003) (finding that a
discrepancy regarding the date on which the petitioner’s wife
had received two forced abortions by the Chinese government
was minor); Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.
2000) (finding that a discrepancy in the date the petitioner
was beaten and arrested by police for having an inter-faith
relationship did not go to the heart of the petitioner’s asylum
claim); Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.
1988) (as amended) (holding that a discrepancy regarding the
date on which the petitioners claimed they had been chased by
a death squad was minor and could not serve as the basis for
an adverse credibility determination); Damaize-Job, 787 F.2d
at 1337 (finding that an inconsistency between the petitioner’s
oral testimony and his asylum application regarding the year
in which his daughter was born was “trivial” and could not
support an adverse credibility determination).
1632 DON v. GONZALES
Here, the IJ failed to state why the hiring date inconsistency
is relevant to Don’s asylum claim or even whether it reveals
anything about his fear for his safety. The hiring date of the
cook had absolutely no significance to Don at the time it
occurred. Don would have had no reason whatsoever to
remember the hiring date, because the date only acquired any
significance in the course of these asylum proceedings. Thus,
it is clear that in making the adverse credibility finding, the
IJ impermissibly “picked at minor memory lapses and incon-
sistencies on issues at the periphery of [petitioner’s] asylum
claim.” Shire v. Ashcroft, 388 F.3d 1288, 1298 (9th Cir. 2004)
(quoting Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.
2004)).
Even if the date discrepancy were material to Don’s claim,
“[a]n adverse credibility finding is improper when an IJ fails
to address a petitioner’s explanation for a discrepancy or
inconsistency,” Singh v. Gonzales, 439 F.3d 1100, 1106 (9th
Cir. 2006) (quoting Kaur v. Ashcroft, 379 F.3d at 887), or
when the IJ fails to “address in a reasoned manner the expla-
nations that [petitioner] offers for these perceived inconsisten-
cies,” Osorio, 99 F.3d at 933. See also Guo v. Ashcroft, 361
F.3d 1194, 1201 (9th Cir. 2004). The IJ failed to address
Don’s plausible explanation that he lied to police in Sri Lanka
regarding the cook’s hiring date because he was afraid for his
life and he did not want the police to accuse him of being
affiliated with the LTTE. The IJ mischaracterized Don’s ratio-
nale for lying, finding out of thin air that “it was important to
him and that his best interests were at stake.”
The majority compounds the IJ’s error by ignoring our cir-
cuit precedent that we do not look beyond the record, instead
supplying its own speculative reasons for the IJ’s insupport-
able finding. The majority first speculates that the hiring date
is not trivial because Don’s testimony is the only evidence in
the record that the cook was in his employ at the time of the
arrest. Maj. op. at 1621. The majority next questions the docu-
mentary evidence submitted by Don to corroborate his
DON v. GONZALES 1633
account, and points out that the IJ in the March 12, 2002 hear-
ing identified discrepancies in the business license issued for
Don’s restaurant. Maj. op. at 1621 n.7. Only the panel major-
ity rests on these unsupported assumptions. Neither the gov-
ernment nor the IJ disputes that the cook was in fact
employed by Don at his restaurant on the date the police
arrested him, evidence which is also detailed in a contempora-
neous newspaper account of the cook’s arrest. Nor did the IJ
rely on any alleged discrepancy in the business license as a
basis for his decision. Quite the opposite: the IJ finds that
“[i]n that year and in that month [January 2000] the respon-
dent [Don] had a cook who worked in a restaurant owned by
them and he was arrested and charged.” The IJ also finds that
Don is a businessman who “owns two businesses.” Moreover,
as the majority itself later discusses, the IJ admitted into evi-
dence both the newspaper article and the business license.
The majority is simply wrong to make up reasons to sup-
port the IJ’s credibility determination. Our review of an
adverse credibility finding is limited to the actual reasons
relied upon by the IJ in his decision. “[W]hen each of the IJ’s
or BIA’s proffered reasons for an adverse credibility finding
fails, we must accept a petitioner’s testimony as credible.”
Kaur v. Ashcroft, 379 F.3d at 890; see also Damaize-Job, 787
F.2d at 1338 (“Because the IJ expressed no further concerns,
and the only explicitly articulated reasons rested on impermis-
sible factors, then we conclude from the IJ’s opinion that [the
petitioner] was an otherwise credible witness.”). Nor does the
majority explain satisfactorily why the hiring date bears a
legitimate nexus to Don’s asylum claim or how the discrep-
ancy might in any manner enhance Don’s claim of persecu-
tion.
To support its departure from clear precedent, the majority
mistakenly relies on Chebchoub v. INS, 257 F.3d 1038 (9th
Cir. 2001), and Singh, 439 F.3d 1100. Maj. op. at 1620-21.
Chebchoub, however, is inapposite because there the petition-
er’s testimony about the events leading up to his departure did
1634 DON v. GONZALES
go to the heart of his asylum claim. 257 F.3d at 1043. The
inconsistencies at issue in Chebchoub — whether Chebchoub
was arrested during a political demonstration, whether he
joined a socialist opposition group during college, and
whether he was active in various political groups — formed
the basis for his claim of persecution on account of political
opinion and imputed political opinion. Id. In addition, unlike
the one inconsistency at issue here, the IJ in Chebchoub found
a total of twenty-two inconsistencies. Id. at 1042.
The majority’s reliance on Singh, 439 F.3d at 1108, is also
misplaced given that in Singh we reversed the IJ’s adverse
credibility finding. In the passage quoted by the majority, maj.
op. at 1621, we discussed whether the IJ’s adverse credibility
finding properly could be based upon Singh’s inability to
recall whether he transported Sikh demonstrators to political
rallies many times, as he initially stated, or only once or
twice, as he later testified. Id. at 1108-09. Although the trans-
portation of the demonstrators was the event which led to
Singh’s arrest and beating by the Indian police, and we noted
that it thus arguably went to the heart of his claim, we found
that the “number of times Mr. Singh transported protestors
reveals nothing about the events that caused him to fear for
his safety.” Id. at 1109. We reiterated that “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”
and rejected it as a basis for the IJ’s adverse credibility deter-
mination. Id.
The majority errs yet again when it characterizes the incon-
sistency in the hiring date of the cook as one piece in a pattern
of pervasive dishonesty, reasoning that “ ‘when inconsisten-
cies that weaken a claim for asylum are accompanied by other
indications of dishonesty — such as a pattern of clear and per-
vasive inconsistency or contradiction — an adverse credibility
determination may be supported by substantial evidence.’ ”
Maj. op. at 1622 (quoting Kaur v. Gonzales, 418 F.3d 1061,
DON v. GONZALES 1635
1067 (9th Cir. 2005)). This faulty logic allows the majority to
go on to find Don’s account comparable with that of the peti-
tioner in Kaur v. Gonzales, a case in which the circumstances
could not be more dissimilar to those existing here. 418 F.3d
at 1067. In Kaur, the petitioner completely changed both the
details and the key events which formed the heart of her asy-
lum claim, including retracting her claim that she had been
raped at the hands of the Punjabi police. Id. at 1063, 1067. In
addition, Kaur admitted to the IJ that she knowingly lied to an
INS officer, in particular stating that she was not married, for
the express purpose of ensuring that her husband could file an
asylum application if hers was denied. Id. at 1066-67.
Because we correctly found that these numerous and perva-
sive inconsistencies went to the heart of Kaur’s claim and
could not be categorized as minor, we upheld the adverse
credibility finding. Id. at 1067.
Unlike in Kaur v. Gonzales, however, “other indications of
dishonesty” do not abound in Don’s account and are not “so
numerous and so blatant as to cast doubt on [his] entire story.”
Id. at 1066. Because the hiring date of the cook is a minor
inconsistency for which Don offered a plausible explanation,
it cannot bear the weight of the IJ’s adverse credibility find-
ing.
B. Propensity for Not Telling the Truth
The IJ states that Don “had a propensity for not telling the
truth,” but fails to articulate any fact to undergird this finding.
The IJ’s opinion only identifies two bases for this “propensi-
ty.” First, the hiring date inconsistency, and second, an
alleged “lie” to the LTTE that he would try to get the cook
released. The IJ described Don’s response to the LTTE as
Don “tr[ying] to predicate [sic] the LTTE by telling them he’d
cooperate and apparently he didn’t except to talk to some of
his friends in the force but he didn’t do what he had really set
out to do.” The IJ’s assertion has no basis in the record, nor
in our case law.
1636 DON v. GONZALES
The IJ simply got the facts wrong. A review of the record
reveals that Don did not lie to the LTTE when he stated that
he would attempt to secure the cook’s release. Don testified
that he actually tried to seek help from his friends in the local
police to get the cook released:
Q: Did you talk to anyone regarding freeing Mosi
from the police?
A: I — I asked for my friends to release Mosi from
the police.
Q: Which friends?
A: Friends who worked in the police, those people.
When this happened I told this to my friends. I told
them if I can (indiscernible) from the police. I don’t
have any — (indiscernible) problem with the LTTE.
That’s kind [sic] of help I ask from my friends.
Q: What did they say to you?
A: The first time they said they would look into
that. The next time they said they cannot do it
because (indiscernible) and there are some more
people.
Don had an obvious incentive to do so — if he could secure
the cook’s release, perhaps the LTTE would not carry out its
threat to kill Don and his family. In response to the IJ’s ques-
tion during the March 12, 2002 hearing asking whether Don
lied to the police and the LTTE because it would benefit him,
Don explicitly denied lying to the LTTE, stating “I didn’t lie
to the LTTE. What I thought was if I take Mosi [the cook] out
from [sic] the police, that’s (indiscernible) from the problems
I had with LTTE.”
Don’s telling the police that the cook had just started work-
ing for him and his promising the LTTE that he would try to
DON v. GONZALES 1637
secure the cook’s release were acts performed to avoid further
persecution and facilitate escape from Sri Lanka. Don’s
behavior is fully consistent with his claim of asylum. The
LTTE is a known violent terrorist organization which repeat-
edly threatened his life. Who wouldn’t promise a fierce and
powerful terrorist group whatever they demanded if one’s life
were threatened? And then having failed to deliver what had
been promised, who wouldn’t attempt to flee?
The majority erroneously accepts the IJ’s “propensity for
dishonesty” determination at face value, neglecting its duty to
review the record to determine whether the IJ’s characteriza-
tion is supported by any evidence. The majority instead looks
to Kaur v. Gonzales for support. 418 F.3d at 1065-67. Kaur
v. Gonzales, however, is inapposite, as the petitioner there
admitted that the reason she lied about her marital status and
her rape by the Punjabi police was specifically to enhance her
chances of obtaining asylum. Id. By contrast, there is no sug-
gestion here that Don lied to establish an element of his asy-
lum claim or to enhance his chances; to the contrary, Don lied
to the police to minimize his affiliation with a suspected ter-
rorist and escape persecution by the TDB. Furthermore, Don
did not lie to the LTTE, but rather truthfully told them he
would try to free Moorthi. The fact that Don was unable to
deliver upon his promise to terrorists who were threatening
his life does not in any way support a finding that he has a
“propensity for dishonesty.”
C. Implausibility of Persecution by the LTTE and the
TDB
The IJ created a fantastical scenario in which he likened the
working relationship between the Sri Lankan local police and
the TDB to that of the local police in the United States with
the FBI. He speculated that Don’s ties to the local police
would erase any problems he had with the TDB, and assumed
that the local police and the TDB would competently and
judiciously investigate whether there was a terrorist in their
1638 DON v. GONZALES
midst. These findings are grounded on quicksand — factual
inaccuracies and speculation — rendering them wholly lack-
ing in support.
The IJ first speculated that the TDB and the local police in
Sri Lanka had a close working relationship:
The respondent was visited by the TDB and he hap-
pened not to be home. They asked to speak to him
twice which frankly seemed reasonable to me since
they dealt with terrorists and they had one in their
midst. The irony with [sic] this is that the respon-
dent’s wife, who is in a family of police officers,
apparently they have no problems with the TDB.
Apparently, it would be the same as the local police
and the FBI. However, I would think that the FBI
would listen to the local police.
The IJ next surmised that because on American television
those with ties to the police can easily resolve legal difficul-
ties, Don should have been able to clear up any problems:
Assuming everything this man says is true, this
seems to be one of those situations that one sees on
television where one thinks that if they sit down at
a table and talk about, [sic] it they can get it straight-
ened out. This respondent must have some credibil-
ity as a businessman in his town. With police friends
and so forth I think they could easily ascertain that
he had not had ties to the Tamel [sic].3
3
I cannot even imagine to which television shows the IJ is referring. In
one of the most highly-rated series on television, 24, Jack Bauer, a federal
agent at the Counter Terrorism Unit, located in Los Angeles, has never
once had the opportunity to “sit down at a table” and “straighten it out”
at any time during its past five seasons. Perhaps the IJ was imagining an
idealistic world that exists only in his own mind — but that would be
speculation, and my dissent does not depend on that.
DON v. GONZALES 1639
Sympathizing with the plight of the TDB in not being able to
question Don and completely disregarding the evidence in the
record documenting the Sri Lankan security forces’s penchant
for brutal interrogation methods and extrajudicial killings, see
infra, the IJ then noted:
[T]he police would certainly have, as I said, an
active duty to investigate when there is a terrorist in
their midst. That is if this man is, in fact, a terrorist
which on [sic] one has proven, then the police cer-
tainly need to know as much about him as they can.
I see no credible evidence or documentation to prove
that these people on behalf of the government would
harm the respondent in any way.
The IJ then opined that Don’s fear of an extremely violent ter-
rorist organization was misplaced: “I do not see how it is that
based on the fact that this man was arrested in his restaurant
and was his employee why it is that they would persecute
him. If they did, I would concede that the government proba-
bly would do nothing about it.” The IJ concluded his run of
wild speculation with the conjecture that because Don filed
police reports with the police, the police “should have been
aware that he was trying to cooperate with them from the
start.”
The IJ posited a world that may exist, if at all, only on
American television, not in reality, one in which the local
police consistently work effectively with the FBI (and vice-
versa) and that prominent Sri Lankans who have nothing to
hide can just sit down and “work things out” with the police.
There is absolutely no evidence in the record that support’s
the IJ’s preposterous assertions, much less the requisite “sub-
stantial evidence.” The evidence in the record only corrobo-
rates Don’s account. The United States Department of State’s
Country Report on Human Rights Practices in Sri Lanka (Feb.
2001) (“Country Report”), submitted as part of the adminis-
trative record, corroborates Don’s testimony that security
1640 DON v. GONZALES
forces,4 like the TDB, often operate independently of other
government entities and commit serious human rights abuses.
Don’s testimony confirms that the TDB and the local police
do not work in concert; Don testified that he had gone to the
Sri Lankan police headquarters on several occasions and that
despite having told the local police that the TDB was looking
for him, he was not once held for questioning or told to report
to the TDB. Don also testified that he was rebuffed by his
wife’s brother-in-law, who worked for the local police, when
he asked for assistance with the TDB: “He said he cannot get
involved with the TDB because the people who work for [sic]
are elected by the president of Sri Lanka.” Don repeatedly
emphasized that he was afraid of the TDB despite his family
connections with the local Sri Lankan police.
Furthermore, the evidence demonstrates that Don had good
reason to fear the TDB. Don testified that the TDB had killed
prisoners in the past: “They killed people and they put them
— the dead bodies on the light poles. The (indiscernible) put
the pictures everywhere of how they did [sic] the people.
They’re (indiscernible) [sic] Sri Lanka [sic] if you go to TDB,
4
According to the Country Report, Sri Lankan security forces consist of
both police and the armed forces.
The 60,000-member police force is responsible for internal secur-
ity in most areas of the country, and it also has been used in mili-
tary operations against the LTTE. The 120,000-member army
(which includes the Army Volunteer Force), the 17,000-member
navy, and the 18,500-member air force bear principal responsibil-
ity for conducting operations against the LTTE insurgents. The
police paramilitary Special Task Force (STF) also battles the
LTTE. The more than 15,000-member Home Guards, an armed
force drawn from local communities and responsible to the
police, provides security for Muslim and Sinhalese village com-
munities in or near the war zone. The government also arms and
appears to direct various anti-LTTE Tamil militias, although at
times these groups seemed to act independently of government
authority.
Country Report pmbl.
DON v. GONZALES 1641
you’re not going to come back again.” The Country Report
corroborates Don’s account. It states that Sri Lankan security
forces have broad powers to arrest and detain people without
charge or judicial review, and that the Sri Lankan Emergency
Regulations, in force nationwide since August 1998, permit
“pretrial detention for a maximum of four consecutive 3-
month periods.” Country Report § 1 pt. d. Furthermore, the
Country Report verifies that security forces have been respon-
sible for many extrajudicial killings and disappearances:
Police, Home Guards, and army personnel commit-
ted extrajudicial killings, including the killing of
civilians in connection with the conflict of the
LTTE. . . . Impunity remains a serious problem.
Since April 1995 at least several hundred persons
have been killed extrajudicially by the security
forces or have disappeared after being taken into
security force custody; they are presumed dead.
Country Report § 1, pt. a. The Country Report substantiates
Don’s fear of “disappearing” should he have been at home
when the TDB arrived; regional commissions set up in
November 1994 to investigate disappearances that occurred
from 1988-1994 found that “16,742 persons disappeared after
having been removed involuntarily from their homes, in most
cases by security forces.” Id. § 1, pt. b. Finally, the Country
Report documents widespread use of torture by the security
forces and police:
Despite legal prohibitions, the security forces and
police continue to torture and mistreat persons in
police custody and prisons, particularly Tamils sus-
pected of supporting the LTTE. . . . [T]orture contin-
ues with relative impunity. In addition, the [Sri
Lankan Prevention of Terrorism Act] makes confes-
sions obtained under any circumstance, including by
torture, admissible in court. . . . Members of the
security forces continued to torture and mistreat
1642 DON v. GONZALES
detainees and other prisoners, particularly during
interrogation.
Id. § 1, pt. c. The methods of torture employed by the security
forces are barbarous and belie the IJ’s notion that Don had
nothing to fear from the government forces: “electric shock,
beatings (especially on the soles of the feet), suspension by
the wrists or feet in contorted positions, burning, slamming
testicles in desk drawers, [ ] near drownings,” remaining in
“unnatural positions for extended periods,” and placing “bags
laced with insecticide, chili powder, or gasoline [ ] over [the]
head[ ].” Id.
The record likewise reveals just how ludicrous the IJ’s sup-
position is that Don should have nothing to fear from the
LTTE. Don’s wife described the threats the LTTE made over
the telephone: “[T]hey were telling my husband to let them
know that LTTE is a very strong terrorist group and they can
kill everybody in your family.” The Home Office of the
United Kingdom’s Sri Lanka Assessment (Apr. 2001)
(“Assessment”) further corroborates Don’s account, detailing
the grisly reprisal methods employed by the LTTE:
deliberate and arbitrary killings of Sinhalese civil-
ians; summary executions of Tamils considered to be
“traitors”; torture and ill treatment of prisoners;
...
people being forced to provide guerrillas with food
and money; routinely violating the civil liberties of
the people in the areas of Sri Lanka which they con-
trol, operating an unfair court system, and discrimi-
nating against ethnic and religious minorities; use of
excessive force in the war. The LTTE kill non-
combatants, and are responsible for disappearances
and detentions.
DON v. GONZALES 1643
Assessment ¶ 5.2.86. The Country Report also documents
widespread use of torture by the LTTE: “The LTTE report-
edly used torture on a routine basis. Security force prisoners
released by the LTTE stated that they had been subjected to
torture, including being hung upside down and beaten, having
pins inserted under their fingernails, and being burned by hot
rods.” Country Report § 1, pt. c.
All of this evidence is contained in the administrative
record. It compels a finding that Don’s account of simulta-
neous persecution by the LTTE and the TDB and fear of
being tortured and killed by one or the other is credible. The
IJ should have considered this record evidence, but did not, to
determine the plausibility of Don’s account, rather than rely-
ing on his perceptions of American network television to
inform himself of conditions at home or abroad. Although an
“IJ’s comments regarding ‘implausibility’ are treated as
grounds for an adverse credibility finding,” it is only a proper
basis if the IJ’s “logical inferences are supported by substan-
tial evidence.” Singh, 439 F.3d at 1110 (citations omitted).
Even if the record did not completely undermine the IJ’s
conjecture, his “findings” are little more than idle musings.
We have consistently stated that personal conjecture about
what persecutors would or would not do is speculation and
not a substitute for substantial evidence.5 Second, we have
repeatedly held that speculation and conjecture about the
workings of foreign authorities and governmental bodies can-
not support an adverse credibility finding.6 In a similar case,
5
See, e.g., Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996)
(“personal conjecture about what guerillas likely would and would not do”
is not sufficient); Del Valle v. INS, 776 F.2d 1407, 1413 (9th Cir. 1985)
(“[T]he BIA’s conclusion that the security forces released Del Valle
because they were satisfied that he was not part of the opposition is not
based on substantial evidence, but upon conjecture.”).
6
See, e.g., Singh, 439 F.3d at 1108 (speculation about what types of
questions the IJ believed Indian officials would ask of suspected Sikh sep-
1644 DON v. GONZALES
Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999), we con-
cluded that the IJ’s finding regarding whether petitioner’s
father, as a member of the middle class, had influence in the
military government and could therefore protect him, was
speculation insufficient to support an adverse credibility find-
ing. Id. Finally, we have held that reliance on speculation
about a petitioner’s fear of his persecutors and how he might
react in response to that fear is specious.7
aratist during beating was impermissible ground); Kaur v. Ashcroft, 379
F.3d at 887-88 (“personal conjecture about the manner in which Indian
passport officials carry out their duties” and how an applicant would
describe an event is impermissible basis); Ge v. Ashcroft, 367 F.3d 1121,
1125 (9th Cir. 2004) (personal conjecture about what the Chinese authori-
ties would or would not do in a given situation is impermissible basis);
Arulampalam v. Ashcroft, 353 F.3d 679, 687-88 (9th Cir. 2003) (IJ’s
hypotheses regarding abilities of Sri Lankan soldiers and police and offi-
cial registration requirements is impermissible basis); Wang v. INS, 352
F.3d 1250, 1255-56 (9th Cir. 2003) (speculation regarding China’s use of
force against demonstrators and enforcement of one-child policy is imper-
missible basis); Singh v. INS, 292 F.3d 1017, 1024 (9th Cir. 2002)
(assumption regarding Indian police motives is impermissible basis); Gui,
280 F.3d at 1226-27 (IJ’s opinion “as to how best to silence a dissident”
and that “the Romanian government must not be repressive because it
merely harassed and threatened but did not kill” petitioner, is impermissi-
ble basis); Chouchkov v. INS, 220 F.3d 1077, 1083 (9th Cir. 2000) (per-
sonal conjecture about expected efficiency and competence of government
officials is impermissible basis); Shah v. INS, 220 F.3d 1062, 1069, 1071
(9th Cir. 2000) (State Department conjecture about the effect electoral vic-
tory would have on existing political persecution, BIA’s belief about what
a letter should look like, and how many the applicant should have received
is impermissible basis).
7
See, e.g., Guo, 361 F.3d at 1201-02 (speculation as to why Guo did not
apply for asylum immediately upon entry is impermissible ground for
adverse credibility determination); Paramasamy v. Ashcroft, 295 F.3d
1047, 1052 (9th Cir. 2002) (IJ’s hypothesis as to what motivated the appli-
cant’s departure from Sri Lanka does not support adverse credibility find-
ing); Bandari, 227 F.3d at 1167-68 (“IJ’s subjective view of what a
persecuted person would include in his asylum application,” personal
belief that applicant should have bled when he was flogged, and specula-
tion about a foreign government’s educational policies are impermissible
grounds).
DON v. GONZALES 1645
The majority fares no better than the IJ in confounding the
local Sri Lankan police with the TDB. The majority asserts
that “Don contacted friends who could influence the TDB to
release the cook, and spoke to the TDB by telephone, describ-
ing filed police reports addressing the LTTE threats.” Maj. op.
at 1623. Nothing in the record supports the statement that Don
had friends who could influence the TDB or that he referenced
or described in a detailed manner the police reports filed with
the Colombo and Padukka police departments to the TDB. In
fact, the record compels the contrary conclusion. The
exchange between the Immigration Service attorney and Don
was as follows:
Q. Sir, you stated that the TDB — is it true that
you believe that the TDB thinks that you aided the
terrorists?
A. Yes.
Q. But you never used the police report that you
submitted to the Court to show your innocence to the
TDB, did you?
A. I just — I just talked to the TDB over the phone
and I told them.
Q. But you never showed them or referenced them
to any of the police reports you made indicating that
you did not (indiscernible)?
A. My friends told me don’t go to the TDB. That’s
why I called them and — and I told them I made the
police reports with the — about the LTTE (indis-
cernible).
The majority engages in the same speculation as the IJ
about the relationship between the TDB and the local police
when it postulates that “it is implausible that [Don] would
1646 DON v. GONZALES
bring attention to himself by telling the police in Colombo
that he feared the TDB because the TDB was looking for
him.” Maj. op. at 1623. This finding of implausibility is with-
out logic, much less record support. The record is clear that
Don went to the local police, but feared contact with the TDB
given the severe human rights abuses committed by Sri Lan-
kan security forces, which are well-documented in the Coun-
try Reports contained in the record. Thus, the majority
erroneously finds the IJ’s conclusion that Don’s account is
implausible, a finding permeated with impermissible specula-
tion and conjecture, is supported by substantial evidence. See
Chen, 362 F.3d at 621 (a “general conclusion” that the peti-
tioner’s testimony, taken as a whole, is not credible cannot be
a basis for an adverse credibility finding because it “amounts
to no more than speculation and conjecture once we reverse
each of the IJ’s credibility findings”).
CONCLUSION
Because the IJ’s adverse credibility determination rested on
insufficient and impermissible grounds, we must deem Don
credible. See Akinmade, 196 F.3d at 957-58 (“We conclude
that the BIA’s credibility determination rested on insufficient
and impermissible grounds. As in other similar cases, under
these circumstances, we deem the petitioner’s testimony cred-
ible.”). I would therefore reverse the BIA’s adverse credibility
determination and remand to the BIA for a determination of
Don’s eligibility for asylum.