Singh v. Ashcroft, Ninth Circuit
In this case, the court found that the immigration judge and Board of Immigration Appeals had improperly made an adverse credibility determination in an asylum application, and remanded the case for a consideration of the merits.
Baljit Singh, a native of India, applied for asylum after entering the US without authorization in 1997. He claimed that he faced persecution as a result of his membership in, and active support of a political party working for an independent Khalistan in India. He claimed to have been taken into police custody and was released only after his father paid a bribe. He was taken to the hospital for treatment of injuries he received, and at the asylum hearing presented a letter from the doctor who treated him. After this incident, Singh for a while refrained from further political activities, but eventually again became active. In early 1997, he learned that police were waiting at his home to arrest him, and he fled, eventually arriving in the US. The immigration judge found Singh was deportable for entering the US without authorization, and denied his application for asylum, finding that he was not credible. The Board of Immigration Appeals affirmed, finding three bases for a determination that Singh was not credible: the omission in the doctor’s letter of some of his injuries, Singh’s discrepancies in locating the place of a political rally, and his unresponsiveness to the INS attorney’s questions during the asylum hearing. Singh then appealed to the Ninth Circuit.
To win the appeal, the court must find that the evidence was so compelling that no reasonable person could disagree that Singh would face persecution if returned to India. This determination, in turn, rests on whether the bases for the Board’s finding that Singh was not credible were sufficient. The Ninth Circuit addressed each reason in turn.
First, the court found that Singh’s testimony as to his injuries was specifically corroborated by the letter from the doctor, and by physical evidence. While the doctor’s letter failed to mention an injury to Singh’s arm, the court noted that this omission did not make the two accounts of the injuries inconsistent. Because the accounts were not inconsistent, the omission in the doctor’s letter is not the basis for an adverse credibility determination. Moreover, Singh had physical evidence of the injury to his arm, clearly evidence that he had suffered injuries. The court found that it was improper for the Board to ignore this evidence, which went to the heart of his asylum claim, based on a minor omission in the doctor’s letter.
Second, the court addressed the issue of the location of the political rally. In oral testimony, Singh said the rally was held in one village, while in his written asylum application, he indicated that it was in a different one. The court found this discrepancy minor, and in no way an effort to enhance his credibility. The important issue is the fact of the rally, not its precise location.
Third, the court address Singh’s alleged nonresponsiveness to the INS attorney and the immigration judge. The court noted that neither the Board nor the immigration judge citied a single specific example of this nonresponsiveness. In order to support an adverse credibility determination, there must be specific examples of nonresponsiveness. In addition, the court’s review of the record did not reveal any instances in which Singh evaded or refused to answer questions.
Therefore, the court reversed the denial of asylum and remanded the case with instructions that an immigration judge evaluate the merits of Singh’s application.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0170505p.pdf.
In re S-H-, Board of Immigration Appeals
In this case, the Board addressed the impact of regulations, which will go into effect later this month, to limit its review of cases.
The respondents, a family from Iraq, applied for asylum in the US. An immigration judge granted the applications of the parents, and the INS appealed, claiming that the IJ’s opinion did not sufficiently explain the reasons for the grant. The Board agreed, finding that it did not provide any reasons for the grant. Therefore, the case was remanded for further proceedings.
The Board then addressed the impact of new regulations on its operations, specifically when it may review findings of fact. Previously, the Board was authorized to engage in independent fact finding. Under the new regulations, it may not engage either in fact finding or in review of fact finding by immigration judges, unless a factual determination is clearly erroneous. Moreover, in cases where an immigration judge’s decision is unclear, rather than review the case itself, the Board will no remand the case for further proceedings. This regulation will go into effect on September 25, 2002.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3478.pdf.
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