Pavittar Singh v. Loretta E. Lynch

We must decide, in this asylum case under the REAL ID Act, whether an Immigration Judge’s adverse credibility determination may be supported exclusively by background evidence in the record.

I

Pavittar Singh, a native and citizen of India, entered the United States on or about January 4, 2007, as a nonimmigrant visitor, with authorization to remain in the United States for six months. However, on April 19, 2007, the Department of Homeland Security served Singh with a Notice to Appear, charging him as removable for failure to comply with the conditions of his nonimmigrant status. Specifically, Singh'was charged as non-eompliant because he was employed for wages at a convenience store without authorization of Immigration and Customs Enforcement (“ICE”). Singh then sought relief from removal by applying for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

A

In due course, Singh appeared before an Immigration Judge (“IJ”) and testified *974 that he had suffered persecution on account of his membership in the Nirankari sect of the Sikh faith. He asserted that on January 16, 1998, terrorists entered his family’s shop in India,…

concurring in part and dissenting in part:

I agree with the majority that under the REAL ID Act, an Immigration Judge’s adverse credibility determination may be supported exclusively by background evidence in the record. However, I respectfully dissent from the majority’s decision to uphold the agency’s adverse credibility determination. The IJ and BIA mischar-acterized the background evidence and did not “consider the totality of the circumstances” as required by 8 U.S.C. § 1158 (b)(l)(B)(iii). I would grant Singh’s petition for review.

I

I agree with the majority that under the -Real ID Act, a petitioner’s specific testimony may be discredited solely by background evidence in the record. However, an IJ is still required to consider the totality of the circumstances and to make an individualized credibility determination that rests on “specific and cogent reasons.” 8 U.S.C. § 1158 (b)(l)(B)(iii); Shrestha, 590 F.3d at 1042 (“The REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.”). As…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAVITTAR SINGH, No. 08-74212 Petitioner, Agency No. v. A098-501-520

LORETTA E. LYNCH, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 7, 2014* San Francisco California

Filed September 21, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O’Scannlain and M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain Partial Concurrence and Partial Dissent by Chief Judge Thomas

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). SUMMARY**

Immigration

The panel denied a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal and Convention Against Torture protection on adverse credibility grounds.

The panel held that the REAL ID Act permits background documents to serve as the sole basis for an adverse credibility determination. The panel explained that the immigration judge…