Balwant Singh v. Holder

FILED
NOT FOR PUBLICATION OCT 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALWANT SINGH, No. 06-72978
Petitioner, Agency No. A097-548-914
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2010
San Francisco, California
Before: REINHARDT, BERZON and CALLAHAN, Circuit Judges.
Balwat Singh petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of Singh’s application
for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (CAT). We grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The BIA expressly relied on a line of its decisions that stand for the
proposition that, even when “an adverse credibility determination would not be
appropriate,” an applicant seeking asylum or withholding of removal must still
produce corroborating evidence if his testimony is not sufficiently “believable,
consistent,” and “detailed.” See Matter of S-M-J-, 21 I. & N. Dec. 722, 729, 731
(BIA 1997). Those cases hold that the absence of corroborating evidence can
constitute a failure by an otherwise credible applicant to meet his “burden of
proof” with respect to establishing eligibility for asylum or withholding of
removal. Id. at 731. Following those cases, the BIA held that Singh “failed to
carry his burden of proof.”
Here the BIA stated that Singh “failed to credibly establish his identity,” but
gave as reasons for this conclusion only that Singh did not produce corroborating
evidence such as an original passport or a birth certificate. Taken in the context of
the BIA’s discussion of the need for applicants to produce corroborating evidence
even when the agency does not make an adverse credibility determination, this
statement regarding Singh’s credibility does not satisfy our requirement that
adverse credibility determinations be express. See, e.g., Recinos de Leon v.
Gonzales, 400 F.3d 1185, 1191 (9th Cir. 2005); Kalubi v. Ashcroft, 364 F.3d 1134,
1137–38 (9th Cir. 2004). Nor was there any such express credibility finding with
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regard to whether the incidents and circumstances to which Singh testified actually
occurred.
2. In the absence of an explicit adverse credibility determination, the BIA
erred by requiring Singh to produce evidence corroborating his testimony. Pre-
REAL ID Act law applies in this case. For pre-REAL ID cases, the “rule
established in [the line of cases relied on by the BIA] . . . is unequivocally contrary
to the rule in this circuit.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir. 2000);
Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000). Because no explicit adverse
credibility determination was made, Singh’s testimony, including his affirmations
of his identity and his descriptions of his arrest and abuse, should have been
credited as true. See Singh v. Gonzales, 491 F.3d 1019, 1025 (9th Cir. 2007).
Taking Singh’s testimony that he was Singh as true, it necessarily follows that
Singh established his identity. The only question remaining was “whether these
facts [to which Singh testified], and their reasonable inferences, satisf[ied] the
elements of the claim for relief. No further corroboration [was] required.” Ladha,
215 F.3d at 900; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1124 (9th Cir.
2008); Kataria, 232 F.3d at 1114.
3. Neither the IJ nor the BIA articulated an intelligible holding as to whether
Singh’s testimony, if credited as true, would have demonstrated that he was
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persecuted on account of his membership in a protected group and therefore
eligible for asylum or entitled to withholding. “We will not ‘guess at the theory
underlying’ the IJ’s or the BIA’s opinion,” and therefore must remand to the BIA
for consideration of this issue in the first instance. Recinos de Leon, 400 F.3d at
1189, 1194 (citing SEC v. Chenery Corp., 332 U.S. 194, 197 (1947)).
Because the BIA failed to credit Singh’s testimony as true for purposes of
determining whether Singh established eligibility for asylum or entitlement to
withholding of removal, we assume that the BIA made the same error with respect
to assessing Singh’s CAT claim, as the BIA made no indication to the contrary.
We therefore remand to allow the BIA to determine whether Singh qualified for
relief under CAT.
We grant Singh’s petition and remand to the BIA for further proceedings
consistent with this Memorandum.
PETITION GRANTED; REMANDED
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