Jarnail Singh v. Alberto R. Gonzales, Attorney General

403 F.3d 1081 Jarnail SINGH, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 02-74426. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2004. Filed April 13, 2005. COPYRIGHT MATERIAL OMITTED George T. Heridis (argued) and Earle A. Sylva, Rai and Associates, San Francisco, CA, for the petitioner. Dimple Gupta (argued) and Allen W. Hausman, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Avq-oel-nhl. Before B. FLETCHER, LEAVY, and BERZON, Circuit Judges. Opinion by Judge BERZON; Concurrence by Judge LEAVY BERZON, Circuit Judge. 1 Jarnail Singh, a native and citizen of India, entered the United States without inspection in June 1994. He applied for asylum in November 1996, citing persecution by the Indian police because he supported Sikh separatism. The Immigration Judge ("IJ") denied Singh's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), after making an adverse credibility determination. The Board of Immigration Appeals ("BIA") streamlined Singh's appeal and affirmed "the results of the decision below"…

Opinion by Judge BERZON; Concurrence by Judge LEAYY

Jarnail Singh, a native and citizen of India, entered the United States without inspection in June 1994. He applied for asylum in November 1996, citing persecution by the Indian police because he supported Sikh separatism. The Immigration Judge (“U”) denied Singh’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), after making an adverse credibility determination. The Board of Immigration Appeals (“BIA”) streamlined Singh’s appeal and affirmed “the results of the decision below” pursuant to 8 C.F.R. § 1003.1 (e)(4) (2002). We review the IJ’s decision as the final agency determination, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003), grant the petition for review, and remand.

BACKGROUND

Singh’s asylum application and testimony in support of his claims for relief from removal, taken together, stated the following: Singh was an active supporter of the Akali Dal Mann party and the All India Sikh Student Federation. On four occasions, the Indian police persecuted him because of his advocacy for a Sikh homeland of Khalistan. After his final arrest, he went…

concurring:

I concur in the result. The adverse credibility determination is not supported by substantial evidence.

This circuit has articulated a rule of law that “Minor inconsistencies in the record that do not relate to the basis of an applicant’s alleged fear of persecution, go to the heart of the asylum claim, or reveal anything about an asylum applicant’s fear for his safety are insufficient to support an adverse credibility finding.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 *1094 (9th Cir.2003). The several citations to medical and psychological journals that discuss the scientific explanations for lapses in date recall, none of which are in the record, suggest that our appellate decision is premised on factfinding that has not been tested by the adversarial process. Furthermore, the opinion incorrectly suggests that an inaccurate process of date recollection is the reason underlying our “minor discrepancy” jurisprudence. I would find it sufficient to rely upon our well-established precedent. By engaging in our own factfinding, we invite another court, or even an administrative body, to reject our holding as precedent, if, in its superior factfinding process, it…