                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 28 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BALWANT SINGH,                                   No. 06-72978

              Petitioner,                        Agency No. A097-548-914

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                      Argued and Submitted October 5, 2010
                            San Francisco, California

Before: REINHARDT, BERZON and CALLAHAN, Circuit Judges.

       Balwat Singh petitions for review of a decision of the Board of Immigration

Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of Singh’s application

for asylum, withholding of removal, and relief under the United Nations

Convention Against Torture (CAT). We grant the petition.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The BIA expressly relied on a line of its decisions that stand for the

proposition that, even when “an adverse credibility determination would not be

appropriate,” an applicant seeking asylum or withholding of removal must still

produce corroborating evidence if his testimony is not sufficiently “believable,

consistent,” and “detailed.” See Matter of S-M-J-, 21 I. & N. Dec. 722, 729, 731

(BIA 1997). Those cases hold that the absence of corroborating evidence can

constitute a failure by an otherwise credible applicant to meet his “burden of

proof” with respect to establishing eligibility for asylum or withholding of

removal. Id. at 731. Following those cases, the BIA held that Singh “failed to

carry his burden of proof.”

      Here the BIA stated that Singh “failed to credibly establish his identity,” but

gave as reasons for this conclusion only that Singh did not produce corroborating

evidence such as an original passport or a birth certificate. Taken in the context of

the BIA’s discussion of the need for applicants to produce corroborating evidence

even when the agency does not make an adverse credibility determination, this

statement regarding Singh’s credibility does not satisfy our requirement that

adverse credibility determinations be express. See, e.g., Recinos de Leon v.

Gonzales, 400 F.3d 1185, 1191 (9th Cir. 2005); Kalubi v. Ashcroft, 364 F.3d 1134,

1137–38 (9th Cir. 2004). Nor was there any such express credibility finding with


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regard to whether the incidents and circumstances to which Singh testified actually

occurred.

      2. In the absence of an explicit adverse credibility determination, the BIA

erred by requiring Singh to produce evidence corroborating his testimony. Pre-

REAL ID Act law applies in this case. For pre-REAL ID cases, the “rule

established in [the line of cases relied on by the BIA] . . . is unequivocally contrary

to the rule in this circuit.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir. 2000);

Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000). Because no explicit adverse

credibility determination was made, Singh’s testimony, including his affirmations

of his identity and his descriptions of his arrest and abuse, should have been

credited as true. See Singh v. Gonzales, 491 F.3d 1019, 1025 (9th Cir. 2007).

Taking Singh’s testimony that he was Singh as true, it necessarily follows that

Singh established his identity. The only question remaining was “whether these

facts [to which Singh testified], and their reasonable inferences, satisf[ied] the

elements of the claim for relief. No further corroboration [was] required.” Ladha,

215 F.3d at 900; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1124 (9th Cir.

2008); Kataria, 232 F.3d at 1114.

      3. Neither the IJ nor the BIA articulated an intelligible holding as to whether

Singh’s testimony, if credited as true, would have demonstrated that he was


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persecuted on account of his membership in a protected group and therefore

eligible for asylum or entitled to withholding. “We will not ‘guess at the theory

underlying’ the IJ’s or the BIA’s opinion,” and therefore must remand to the BIA

for consideration of this issue in the first instance. Recinos de Leon, 400 F.3d at

1189, 1194 (citing SEC v. Chenery Corp., 332 U.S. 194, 197 (1947)).

      Because the BIA failed to credit Singh’s testimony as true for purposes of

determining whether Singh established eligibility for asylum or entitlement to

withholding of removal, we assume that the BIA made the same error with respect

to assessing Singh’s CAT claim, as the BIA made no indication to the contrary.

We therefore remand to allow the BIA to determine whether Singh qualified for

relief under CAT.

      We grant Singh’s petition and remand to the BIA for further proceedings

consistent with this Memorandum.

      PETITION GRANTED; REMANDED




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