Bhupinder Kumar v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BHUPINDER KUMAR, No. 17-73412
Petitioner,
Agency No.
v. A202-080-566
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2020 *
Submission withdrawn March 2, 2021
Resubmitted November 22, 2021 **
San Francisco, California
Filed November 30, 2021
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The panel withdrew this case from submission on March 2, 2021,
pending the court’s decision in Alam v. Garland, 11 F.4th 1133 (9th Cir.
2021) (en banc). The panel now unanimously concludes that this case
remains suitable for decision without oral argument. See Fed. R. App.
P. 34(a)(2).
2 KUMAR V. GARLAND
Before: M. Margaret McKeown and Jacqueline H.
Nguyen, Circuit Judges, and Eric N. Vitaliano, *** District
Judge.
Opinion by Judge McKeown
SUMMARY ****
Immigration
Granting Bhupinder Kumar’s petition for review of a
decision of the Board of Immigration Appeals upholding the
denial of Kumar’s application for asylum and related relief
on adverse credibility grounds, the panel concluded that the
bulk of the credibility findings in this case were infirm, and
remanded.
Kumar, who was born in India and belonged to a caste
considered to be of lower social standing, joined the Bahujan
Samaj Party (“BSP”) because of its opposition to the caste
system. He asserted that as a result of his work for the BSP,
he was beaten four times by the police and members of
opposing parties. An immigration judge denied his
application for asylum and related relief, and the BIA
dismissed Kumar’s appeal.
***
The Honorable Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
****
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KUMAR V. GARLAND 3
The panel explained that under the REAL ID Act, IJs
must base credibility determinations on “the totality of the
circumstances, and all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). However, even after the REAL ID Act,
this court followed its “single factor rule,” under which the
court would affirm an adverse credibility finding so long as
one of the grounds on which that finding was based was
supported by substantial evidence and went to the heart of
the claim. In Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021)
(en banc), the court held that the REAL ID Act abrogated the
single factor rule and that the court must affirm credibility
findings only when they are supported by the totality of
circumstances.
Applying this standard, the panel considered the four
factors that the BIA relied on in upholding the adverse
credibility determination here. First, as to the finding that
Kumar provided inconsistent statements, the panel
concluded that two of the three alleged testimonial
inconsistencies were in fact not inconsistent at all. Second,
as to the finding that a third-party letter conflicted with
Kumar’s testimony, the panel concluded that the
inconsistency was wholly illusory. Third, as to the finding
that it was implausible that Kumar would not have suffered
more injuries after a certain attack, the panel concluded that
the basis for this conclusion relied entirely, and improperly,
on conjecture. Fourth, as to the IJ’s conclusion that Kumar’s
affect suggested that he was reciting a rehearsed story, rather
than relating incidents he had personally experienced, the
panel concluded that the IJ’s perception of Kumar’s
demeanor passed the low bar for reviewing such findings.
The panel observed that the court declined to draw a
bright line or engage in a number-counting analysis in Alam,
instead noting that no specific number of inconsistencies
4 KUMAR V. GARLAND
requires sustaining or rejecting an adverse credibility
determination. The panel also observed that post-Alam
precedents suggest that falsehoods and fabrications weigh
particularly heavily in the credibility inquiry, but explained
that clear falsehoods and fabrications were entirely absent
here.
Acknowledging that the “totality of circumstances”
review permits the court to uphold an adverse credibility
finding, even where the court concludes that some of the
grounds are not supported by substantial evidence, the panel
concluded that the several rejected findings here all but
gutted the adverse credibility determination. The court
remanded to the BIA to determine in the first instance
whether the remaining factors—considered on their own—
suffice to support an adverse credibility determination.
COUNSEL
Pardeep S. Grewal, Law Offices of Pardeep S. Grewal,
Castro Valley, California, for Petitioner.
Matthew A. Connelly, Senior Litigation Counsel; Papa
Sandhu, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
KUMAR V. GARLAND 5
OPINION
McKEOWN, Circuit Judge:
Under the REAL ID Act, Immigration Judges (“IJs”)
must base credibility determinations on “the totality of the
circumstances, and all relevant factors.” 8 U.S.C.
1158(b)(1)(B)(iii). However, even after the passage of this
Act, we continued to follow our historical rule that when an
IJ made an adverse credibility finding based on multiple
grounds, we would affirm that finding “[s]o long as one of
the identified grounds [wa]s supported by substantial
evidence and [went] to the heart of [the] claim.” Wang v.
INS, 352 F.3d 1250, 1259 (9th Cir. 2003). We called this
“the single factor rule.” Now all of that has changed
following the recent en banc decision in Alam v. Garland, in
which we held that the REAL ID Act abrogated the single
factor rule and that we must affirm credibility findings only
when they are supported by the totality of circumstances.
11 F.4th 1133, 1137 (9th Cir. 2021) (en banc). Hewing to
the REAL ID Act and to the holding in Alam, we conclude
that the bulk of the credibility findings in this case are infirm.
We remand to the BIA to determine whether the few
remaining factors are sufficient—in light of the totality of
circumstances—to support such a finding.
I. BACKGROUND
Kumar was born in Punjab, India in 1979. He belonged
to a “Scheduled Caste”—considered to be of lower social
standing—and he joined the Bahujan Samaj Party (“BSP”)
in 2007 because of the party’s opposition to the caste system.
In 2013, Kumar was appointed the BSP leader for his village.
He asserts that as a result of his work for the BSP, he was
beaten four times between January 2013 and April 2014 by
both the police and members of opposing political parties.
6 KUMAR V. GARLAND
The first incident took place in January 2013, when the
police arrested Kumar, accused him of “forcing people to
join BSP,” stripped him naked, beat him with wooden
batons, and subjected him to electric shocks. The police
threatened to kill Kumar if he continued working for the
BSP. Once released from the police station—four to five
hours after his arrest—he was “unable to even stand up” and
was taken to the hospital where he was bandaged and given
painkillers and “glucose injections.”
Undeterred, Kumar continued working for the BSP, and
a few months later, while out campaigning, members of
opposing political parties approached him and demanded
that he shift allegiances and work for them. They beat him
with baseball bats when he refused. His friends “tried to
save” him, but the beating—which lasted “about half an
hour”—did not end until a crowd gathered. Kumar returned
to the hospital and received a similar treatment of painkillers,
glucose injections, and bandages. He spent fifteen days
recovering. He attempted to report the attack, but the police
refused to document it, telling him that “we’ve already
warned you to stay away from the BSP.”
The same opposition party members approached Kumar
several months later. Once again, they demanded that he
work for them, he refused, and they beat him. This time he
lost consciousness. He woke up in a nearby clinic, where he
received the same treatment as before. The same events
unfolded once more a few months thereafter: members of
opposition parties beat Kumar until he lost consciousness,
and he woke up in a nearby clinic.
Less than two months later, in June 2014, Kumar left his
home in India to come to the United States. His family
reports that since he left, opposing political party members
KUMAR V. GARLAND 7
have asked about his whereabouts and made threats should
they find him.
Kumar arrived in the United States in August—entering
near Hidalgo, Texas without a valid entry document. He was
apprehended immediately and given a Credible Fear
Interview (“CFI”) soon after. The asylum officer
determined that Kumar had a credible fear of persecution if
forced to return to India.
The Department of Homeland Security (“DHS”) served
Kumar with a Notice to Appear; he conceded removability
and sought asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Kumar
testified in support of his applications at two removal
hearings, but the IJ found him not credible and denied all of
his claims. The BIA dismissed Kumar’s appeal, citing four
factors supporting the adverse credibility determination:
inconsistent statements, a letter that conflicted with Kumar’s
testimony, the implausibility of Kumar’s testimony, and
Kumar’s demeanor. Neither the IJ nor the BIA analyzed
whether, in the absence of the adverse credibility finding,
Kumar would have established eligibility for any of his
claims.
II. ANALYSIS
A. STANDARD OF REVIEW
In Alam v. Garland, the en banc court clarified the
standard for reviewing adverse credibility determinations
under the REAL ID Act: “[W]e must look to the ‘totality of
the circumstances[] and all relevant factors.’” 11 F.4th
at 1137 (quoting 8 USC § 1158(b)(1)(B)(iii)). We
emphasized that “[t]here is no bright-line rule under which
some number of inconsistencies requires sustaining or
8 KUMAR V. GARLAND
rejecting an adverse credibility determination—our review
will always require assessing the totality of the
circumstances.” Id.Because “the BIA reviewed the IJ’s credibility-based
decision for clear error and relied upon the IJ’s opinion as a
statement of reasons but did not merely provide a boilerplate
opinion,” we review “the reasons explicitly identified by the
BIA, and then examine the reasoning articulated in the IJ’s
. . . decision in support of those reasons.” Lai v. Holder,
773 F.3d 966, 970 (9th Cir. 2014) (internal quotations
omitted). “Stated differently, we do not review those parts
of the IJ’s adverse credibility finding that the BIA did not
identify as most significant and did not otherwise mention.”
Id. (internal quotations omitted).
Taking the totality of the circumstances into account, we
review the BIA’s credibility determination for substantial
evidence. See Li v. Garland, 13 F.4th 954, 956 (9th Cir.
2021) (citing Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010)).
B. THE BIA’S ADVERSE CREDIBILITY FINDING
The BIA identified four factors underlying its adverse
credibility finding. In sum, we hold that most of the factors
relied on by the IJ, and identified as significant by the BIA,
in making the adverse credibility determination are not
supported by the record—that is, several of the alleged
inconsistencies are not inconsistent at all, and the
implausibility finding is wholly unsupported. Because so
little remains in support of the adverse credibility finding,
we grant the petition and remand to determine whether the
totality of the circumstances continues to support that
finding.
KUMAR V. GARLAND 9
1. Inconsistency of Statements
The first reason cited by the BIA was an inconsistent
statement: Kumar stated during the CFI that he was released
from police custody without his family paying a bribe, but
two years later he testified to the IJ that his family did pay a
bribe. The BIA found no clear error in the IJ’s conclusion
that this discrepancy undermined his credibility. The BIA
also identified two additional inconsistencies as relevant
factors in the adverse credibility determination: first, while
Kumar testified that he was “beaten all over his body” during
the December 2013 attack, his asylum statement describing
the same incident asserts only that he was “beaten on his
arms and legs,” and second, while Kumar testified that he
lost consciousness in the December 2013 attack, his asylum
statement describing the same incident does not mention
unconsciousness.
Our cases caution against relying too heavily on
inconsistencies that could be attributable to simple human
error or reluctance. See, e.g., Shrestha, 590 F.3d T 1044–45
(describing the inevitability of some inconsistencies given
the normal limits of human memory); Singh v. INS, 292 F.3d
1017, 1023–24 (9th Cir. 2002) (acknowledging that
individuals who have suffered abuse at the hands of their
governments may be reluctant to fully answer all questions
during the first meeting with U.S. officials). In his CFI,
Kumar was not asked specifically about a “bribe,” and his
response to the question, “Did your family pay for you to be
released?” was ambiguous and potentially indicated that he
did not understand the question. Further, the record of this
interview are notes and not a verbatim transcript, and Kumar
later freely volunteered that his family had paid a “bribe.”
But the REAL ID Act allows IJs to consider any factor
as relevant to the totality of circumstances, even if not
10 KUMAR V. GARLAND
conclusive on its own. This is true of an inconsistent
statement, so long as Kumar’s explanation for the
inconsistency is considered. Shrestha, 590 F.3d at 1045(“When an inconsistency is cited as a factor supporting an
adverse credibility determination . . . the petitioner’s
explanation for the inconsistency, if any, should be
considered in weighing credibility.”).
Kumar received such an opportunity to explain the
inconsistency when he was cross-examined by the
government. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th
Cir. 2011) (“[T]he opportunity to explain may be provided
through cross-examination by the government, or even direct
examination by the alien’s own attorney. . . .”) (internal
citations omitted)). Here, after Kumar testified that his
family paid a bribe to secure his release, the government
attorney read Kumar’s earlier statement from the CFI and
initiated the following exchange:
Q. Do you remember saying that?
A. I don’t remember that.
Q. Are you saying that you did not say that?
A. The bribe was paid. That’s how they
released me.
Q. Are you saying that you did not tell the
Immigration Officer that your family did
not pay for you to be released?
A. I don’t remember that.
KUMAR V. GARLAND 11
Of course, an IJ must consider an applicant’s explanation
for an inconsistency if the explanation is “reasonable and
plausible.” Rizk, 629 F.3d at 1088 (quotations and citations
omitted); see also Shrestha, 590 F.3d at 1045. When asked
about his testimony, Kumar said that he did “not remember”
making the earlier statement. Given that two years had
passed, this may very well have been an honest answer, but
it was hardly an explanation for the inconsistency.
Because the IJ provided Kumar with a sufficient
opportunity to explain the inconsistency, this reason
underlying the adverse credibility is supported by the record
and warrants some weight. Yet the same is not true with
respect to the two additional inconsistencies relied upon by
the BIA—for the simple reason that neither was, in fact, an
inconsistency. Being “beaten on [one’s] arms and legs” is
not inconsistent with being “beaten all over [one’s] body.”
Nor are the accounts conflicting simply because one
recounting of a violent attack was more detailed than the
other. The record does not support the BIA’s reliance on
these other alleged inconsistencies.
2. Third-party letter
The BIA also cited a third-party letter from a BSP leader
that described Kumar’s role in the party, his persecution, and
the various attacks he suffered. The IJ concluded that the
letter called into question Kumar’s credibility because it did
not mention a fourth incident of torture to which Kumar
testified, and because the letter noted that Kumar’s father is
a leading member of the political party, while Kumar did not
mention this fact until asked about it. The BIA found that
the letter “materially conflicts” with Kumar’s testimony
because it does not describe one of the four attacks and
because it notes that Kumar’s father was a leader of the
12 KUMAR V. GARLAND
political party, a fact that Kumar had not brought up on his
own.
The letter did not undermine Kumar’s testimony.
Though the BIA concluded that the letter “materially
conflicts” with Kumar’s testimony, that finding overlooks
the fact that the letter corroborated three of the four violent
incidents, bolstering Kumar’s credibility rather than
undermining it. The letter’s omission of a single fact that
was included in Kumar’s oral testimony does not render the
letter inconsistent. See Singh v. Ashcroft, 301 F.3d 1109,
1112 (9th Cir. 2002) (holding that there was no
inconsistency where a doctor’s letter did not mention all of
the applicant’s injuries). The mention of Kumar’s father as
a party leader is neither a “glaring inaccuracy” nor is it
probative of credibility. Kumar was not asked about his
father’s role in the party until the letter was submitted and,
when asked, he stated that his father was a member. The
record does not support the conclusion that the letter
highlighted an inconsistency in Kumar’s testimony.
3. Plausibility
The third factor cited by the BIA was the plausibility of
Kumar’s testimony. The IJ found it implausible that Kumar
would not have suffered more injuries after sustaining an
attack for thirty minutes. The BIA agreed, concluding that
Kumar only “suffered minimal injuries.” This conclusion
relied on speculation and conjecture, which “cannot form the
basis of an adverse credibility finding.” Shah v. INS,
220 F.3d 1062, 1071 (9th Cir. 2000). Here, the IJ relied on
speculation about the force of the beating, the medical
implications of that force, and the appropriate treatment for
various injuries. See Jibril v. Gonzales, 423 F.3d 1129,
1135–36 (9th Cir. 2005) (improper speculation concerning
whether petitioner could have survived gunshot wound). In
KUMAR V. GARLAND 13
doing so, both the IJ and the BIA improperly disregarded
critical evidence, including that Kumar took fifteen days to
recover, and mischaracterized other evidence—concluding
improperly that the injuries were “minimal,” despite no such
evidence in the record. See Chawla v. Holder, 599 F.3d 998,
1008 (9th Cir. 2010) (IJ’s skepticism as to the plausibility of
testimony was based on mischaracterization of testimony
and thus failed to support the adverse credibility
determination).
4. Demeanor
The fourth credibility issue cited by the BIA was
Kumar’s demeanor. The BIA deferred to the IJ’s conclusion
that Kumar’s “affect” suggested that he was “reciting a
rehearsed story, rather than relating incidents he had
personally experienced.” The IJ found it suspicious that
Kumar described trauma with a “flat” affect. We give
“special deference” to the IJ’s observations about demeanor,
Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999), and,
indeed, “[a]ll aspects of the witness’s demeanor, including
. . . the modulation or pace of his speech and other non-
verbal communication—may convince the observing trial
judge that the witness is testifying truthfully or falsely.”
Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014)
(quotations and citations omitted). The IJ’s perception of
Kumar’s demeanor—though subjective—passes this low
bar.
Having sorted through the BIA’s bases for the adverse
credibility determination, we conclude that two of the three
alleged testimonial inconsistencies are in fact not
inconsistent at all; the alleged inconsistency between the
third-party letter and Kumar’s testimony is wholly illusory;
and the basis for implausibility relies entirely, and
14 KUMAR V. GARLAND
improperly, on conjecture. All that’s left is Kumar’s flat
affect and the ambiguous inconsistency related to a bribe.
In Alam, we declined to draw a bright line or engage in a
number-counting analysis, instead noting that no specific
number of inconsistencies requires sustaining or rejecting an
adverse credibility determination. In the end we must affirm
credibility findings only when they are supported by the
“totality of the circumstances,” 11 F.4th at 1137. While our
precedents do not provide a roadmap for navigating a post-
Alam landscape, they do suggest that falsehoods and
fabrications weigh particularly heavily in the adverse
credibility inquiry. In the recent case of Iman v. Barr, we
held that “the IJ and the BIA erred by relying on an omission
that has no tendency to show Iman fabricated his claims of
persecution when considered in light of the totality of the
circumstances.” 972 F.3d 1058, 1069 (9th Cir. 2020).
Likewise, in Li v. Garland, this court’s first published
decision applying Alam, we held that the totality of
circumstances supported the adverse credibility
determination in large part because the petitioner had
submitted false information in her asylum and visa
applications. 13 F.4th at 960–61. This case stands in contrast
to Li because such clear falsehoods and fabrications in
official submissions are entirely absent.
We acknowledge that in some circumstances, our
“totality of circumstances” review of the BIA’s
determination permits us to uphold an adverse credibility
finding, even where we conclude that some of the grounds
are not supported by substantial evidence. However, the
several rejected findings here all but gut the BIA’s adverse
credibility determination. For this reason, we remand to the
BIA to determine in the first instance whether the remaining
KUMAR V. GARLAND 15
factors—considered on their own—suffice to support an
adverse credibility determination.
PETITION GRANTED.