Balwinder Singh v. Alberto Gonzales, United States Attorney General

Opinion by Judge HENDERSON; Dissent by Judge RAWLINSON.

Balwinder Singh, a Sikh citizen of India, petitions for review of a final order of deportation issued by the Board of Immigration Appeals (“BIA”), denying his applications for asylum and withholding of removal under the Immigration and Nationality Act sections 208 and 241(b)(8), 8 U.S.C. §§ 1158 , 1231(b)(3). The immigration judge (“IJ”) failed either to make an express credibility finding, or to analyze whether Singh’s testimony and other evidence demonstrated he suffered past persecution and had a well-founded fear of future persecution on the basis of a political opinion imputed to him. Instead, the IJ drew an adverse inference from Singh’s refusal to allow access to a Canadian immigration file under his name, and denied his applications on that basis. He erred in doing so. We hold that the inference alone is insufficient to support a denial of asylum. We remand, either for the IJ to make an explicit credibility determination, or for the IJ or the Board to accept Singh’s testimony as true and determine whether he has met his burden of proving statutory eligibility for asylum.

Background

Petitioner Balwinder Singh…

dissenting:

I respectfully dissent. In my view, the majority errs by shoehorning this case into an adverse credibility analysis. The majority goes astray, in my view, by characterizing this case as one where the Immigration Judge (IJ) required Singh to provide corroborating evidence despite the presentation of credible testimony by Singh. There are two fallacies inherent in that characterization: 1) that Singh gave credible testimony and, 2) that the IJ required the production of corroborating evidence. Rather, the record reflects that the IJ was unable to assess Singh’s credibility due to Singh’s obstructionist conduct.

At his hearing on April 15, 2002, Singh testified that an agent from the All-India Sikh Student Federation gave him a passport in the name of Sohan Lalf when they left India. He further testified that before the flight arrived in England, the agent gave Singh a passport bearing Singh’s name, which Singh used to enter Canada.

At his prior hearing on June 4, 2001, Singh never mentioned being given his own passport to enter Canada. To the contrary, Singh left the IJ with the distinct impression that he used the name Sohan Lalf to enter Canada. This impression was…

491 F.3d 1019 Balwinder SINGH, Petitioner, v. Alberto GONZALES, United States Attorney General, * Respondent. No. 03-74390. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 14, 2006. Filed June 12, 2007. Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont, CA, for the petitioner. Allen W. Hausman, & Blair T. O'Connor, United States Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Acu-rrc-vso. Before: W. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and THELTON E. HENDERSON, ** District Judge. Opinion by Judge HENDERSON; Dissent by Judge RAWLINSON. THELTON E. HENDERSON, District Judge: Balwinder Singh, a Sikh citizen of India, petitions for review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"), denying his applications for asylum and withholding of removal under the Immigration and Nationality Act sections 208 and 241(b)(3), 8 U.S.C. §§ 1158 , 1231(b)(3). The immigration judge ("IJ") failed either to make an express credibility finding, or to analyze whether Singh's testimony and other evidence…