News From The Courts

Harpal Singh; Rajwinder Kaur v. Immigration and Naturalization Service

United States Court of Appeals for the Ninth Circuit

Harpal Singh and Rajwinder Kaur, citizens of India, appeal from a decision denying their request for asylum. An Immigration Judge denied their request for asylum, claiming that the couple engaged in terrorist activities related to their effort to establish a separate Sikh state, Khalistan, in India. In making her decision, the Immigration Judge stated that she “has employed reasonable factual inferences from the classified evidence.” This court ordered the government to reveal the classified information to the court.

The IJ stated that she gives “appropriate weight” to the classified evidence. The IJ, three times in her unclassified decision, refers to her classified decision for analysis of the credibility of one or other of the petitioners. The judge also determined that Singh and Kaur should not be deported to India because they are likely to face torture and persecution. The Board of Immigration Appeals stated that its decision “is based solely on the non-classified evidence of record.”  

This court ruled that it is the court’s statutory duty to review petitions from decisions of the Board. The court explained that when the court is denied access to the data informing the IJ’s factual findings, which the Board has made its own, the court is unable to perform our statutory duty. The court ordered the government to produce the 30 pages of classified documents that it used to deny Singh and Kaur’s asylum claim.  

Singh is being detained in a county jail in California based on the classified evidence and has not been charged with any crimes. Kaur was bonded out after brief detention. They challenge the allegations that they were terrorist in India.

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Wang He v. John Ashcroft

Untied States Court of Appeals for the Ninth Circuit

Wang He, a Chinese citizen, appealed the denial of asylum by the Immigration Court and an explicit finding by the Board of Immigration Appeals (BIA) that Mr. He’s testimony in support of his asylum application was not credible. Mr. He claimed that the Chinese government based on their opposition to China’s population control policies had persecuted him and his wife. Specifically, he claimed that, following the birth of their second child, his wife had been involuntarily sterilized. This court held that the BIA’s adverse credibility finding was not supported by substantial evidence.

The court held that none of three reasons for doubting Mr. He’s testimony are supported by substantial evidence in the record: 1) the implausibility of his story that ten people came to his house to forcibly take his wife to be sterilized; This court noted that Mr. He explained that ten people might have been thought necessary to subdue him and his wife and to prevent them from running away. 2) the fact that United States embassy officials were aware of certificates issued after voluntary abortions but not after involuntary sterilization; This court found that Mr. He’s attorney pointed out to the IJ that the Embassy statement referred to abortions rather than sterilizations. 3) and the fact that Mr. He mentioned a second fine late in his testimony, only when he was questioned about why he and his wife never formally registered their marriage. This court explained that Mr. He mentioned the second fine when it became relevant to his story and the questions he was asked on cross-examination.

This court concluded the BIA finding that Mr. He was not credible and refusing to believe that his wife had been involuntarily sterilized, was not supported by “reasonable, substantial, and probative evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The BIA relied on the IJ’s three reasons and added one of its own – the implausibility of Mr. He’s wife being forcibly taken from her house and sterilized during the time period between 7:00 and shortly after 7:30 am. The court noted that this reconstruction of the timing of the events is based on a strained and unjustified reading of a single phrase in Mr. He’s doubly translated testimony, “a little while.” This court held that it is impossible to glean a precise meaning from a statement that appears in the record as “a little while.” The court reasoned from the transcribed testimony, we cannot tell whether Mr. He claimed to have waited at the hospital for several minutes or several hours.

Documentary evidence was introduced at the hearing to support Mr. He’s testimony. This court noted that some of the evidentiary problems in the case appeared to stem from interpreting difficulties. The interpreter spoke Mandarin but did not speak Mr. He’s Foo Ching dialect. Mr. He did not argue, and the court did not hold, that the inadequate translation services he received constituted a denial of due process. This court explained that even where there is no due process violation, faulty or unreliable translation can undermine the evidence on which an adverse credibility determination is based. See Balasubramanrim v. INS, 143 F.3d 157, 162-64 (3d Cir. 1998).

The court believed that this case presents the sort of special circumstance where a remand for additional investigation regarding eligibility would be inappropriate. INS v. Ventura, 123 S. Ct. 353, 355 (2002).