Tejinder Singh v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEJINDER SINGH,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70180
Agency No. A099-339-908
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2014
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and PRATT, Senior
District Judge. **
Petitioner Tejinder Singh (“Singh”), a native and citizen of India, petitions
for review of a decision of the Board of Immigration Appeals (“BIA”) affirming an
FILED
MAY 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
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immigration judge’s (“IJ”) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Because the
parties are familiar with the facts and procedural history of the case, we repeat only
those facts necessary to resolve the issues raised on appeal. We grant the petition
for review and remand this case to the BIA for further proceedings.
The BIA “conducted its own review of the evidence and law rather than
simply adopting the [IJ’s] decision. Accordingly, our review is limited to the
BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks
omitted). Credibility determinations must be based on “specific and cogent
reasons” which are reasonable and which “take into consideration the individual
circumstances” of the applicant’s case. Shrestha v. Holder, 590 F.3d 1034,
1041–42 (9th Cir. 2010) (internal quotation marks omitted).
Substantial evidence does not support the IJ’s adverse credibility finding
based on Singh’s mentioning in his testimony, but not his declaration, that the
police visited his family four times after he left India. “Omissions from asylum
applications are often not a sufficient basis for discrediting later testimony.”
Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). Unlike the petitioner
in Alvarez-Santos, Singh did not omit from his declaration any “dramatic, pivotal
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event” that he personally experienced. See id. All of the police visits occurred
after Singh left India, and at least two of them occurred after Singh submitted his
asylum application. Further, the IJ’s general questions regarding whether Singh
had anything to add to his application were unlikely to elicit the testimony for
which the IJ faulted him.
The IJ also impermissibly speculated that one similar phrase in Singh’s
declaration and his mother’s declaration meant that the declarations were written
by the same person and, further, must have been fabricated. See Joseph v. Holder,
600 F.3d 1235, 1245 (9th Cir. 2010) (explaining that speculation cannot form the
basis of an adverse credibility finding). The declarations are not otherwise notably
similar, and there is no evidence in the record regarding the use of the particular
phrase in Punjabi.
Because the IJ’s adverse credibility determination was not based on
substantial evidence, we vacate the denial of Singh’s asylum application. Because
we vacate the denial of asylum, we also vacate the denial of withholding of
removal and relief under CAT, which are based on the same underlying adverse
credibility determination. Cf. Shrestha, 590 F.3d at 1039.
The petition for review is GRANTED and this case is REMANDED for
further proceedings.
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