                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            APR 17 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

KAWALDEEP SINGH SETHI;                           No. 10-72404
KULVINDER KAUR SETHI; HARGUN
SETHI; PREET SETHI,                              Agency Nos.        A089-132-212
                                                                    A089-132-213
              Petitioners,                                          A089-132-214
                                                                    A089-132-215
  v.

ERIC H. HOLDER, JR., Attorney General,           MEMORANDUM*

              Respondent.



KAWALDEEP SINGH SETHI;                           No. 13-73367
KULVINDER KAUR SETHI; HARGUN
SETHI; PREET SETHI,                              Agency Nos.        A089-132-212
                                                                    A089-132-213
              Petitioners,                                          A089-132-214
                                                                    A089-132-215
  v.

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted March 10, 2015
                            San Francisco, California

Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.

      Petitioner Kawaldeep Singh Sethi, on behalf of himself and his family,

petitions for review of a BIA decision affirming the IJ’s adverse credibility

determination and consequent denial of Sethi’s applications for asylum,

withholding of removal, and protection under the Convention Against Torture.

Sethi also petitions for review of the BIA’s denial of his motion to reopen. For the

reasons discussed below, we grant the petition in No. 10-72404 and remand to the

BIA for a new hearing, and deny the petition in No. 13-73367 as moot.

      With respect to the petition in No. 10-72404, Sethi argues that the IJ’s

exclusion of documentary evidence at his asylum hearing violated due process, and

that substantial evidence does not support the adverse credibility determination.

Where, as here, the BIA expressly adopts a portion of the IJ decision as its own,

this Court reviews that portion of the IJ decision as the agency’s final decision.

Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). We review legal

questions de novo and factual findings for substantial evidence. Kumar v. Holder,

728 F.3d 993, 998 (9th Cir. 2013). We review due process claims in removal




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proceedings de novo. Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en

banc).

         Because Sethi filed his asylum application after May 11, 2005, the REAL ID

Act governs his petition. Under the REAL ID Act, an IJ must assess a petitioner’s

credibility under the totality of the circumstances, including the consistency of a

petitioner’s statements with other evidence in the record. 8 U.S.C.

§ 1158(b)(1)(B)(iii). Here, the IJ excluded from evidence—and thus did not

consider—several of Petitioners’ exhibits. Three such exhibits are relevant for our

purposes. First, the IJ excluded Petitioners’ Exhibit 7-A, a letter from the

President of the Akali Dal Mann party, considering it only for the limited purpose

of addressing Sethi’s credibility. The IJ also excluded for all purposes Petitioners’

Exhibits 7-C and 7-D, corroborating affidavits from Sethi’s friend and father. The

IJ offered two reasons for excluding these exhibits: (1) the exhibits were either

fraudulent or otherwise unreliable; and (2) they were not sufficiently authenticated.

         First, the IJ concluded that all three exhibits were “unreliable” and “not

worthy of credence,” and that Exhibit 7-A was “fraudulent.” Substantial evidence

does not support the IJ’s conclusion with respect to Exhibits 7-C and 7-D. Neither

the IJ nor the Government ever identified any evidence suggesting that these

affidavits are unreliable. Rather, both affidavits appear to have been notarized,


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verified, and signed by their respective affiants, and the IJ acknowledged having

the original of both documents. Because Exhibits 7-C and 7-D appear to

corroborate the information contained in Exhibit 7-A, the exclusion of 7-C and 7-D

undermined the IJ’s ability to assess Exhibit 7-A under the totality of the

circumstances. Thus, substantial evidence does not support the IJ’s conclusion that

these exhibits were fraudulent, unreliable, or unworthy of credence.

      The IJ’s second reason for excluding the three exhibits—that they were “not

sufficiently authenticated”—finds no support in the record. Sethi laid a foundation

for each of the documents and provided original copies to the court. While an IJ

may require a petitioner to authenticate documents in immigration proceedings

through “any recognized procedure, such as those required by [DHS] regulations

or by the Federal Rules of Civil Procedure,” Khan v. INS, 237 F.3d 1143, 1144

(9th Cir. 2001) (per curiam) (internal quotation marks omitted), the IJ identified no

regulation or procedure justifying the exclusion of original documents for which a

foundation was laid. As such, the IJ erred in excluding the documents for lack of

authentication.

      Importantly, the improper exclusion was not harmless. The affidavits

substantiate key details in Sethi’s testimony, including his claim that the police

arrested and tortured him four times, and that he served as Secretary of Gurudwara


                                           4
Singh Sabha. The Akali Dal Mann letter supports Sethi’s assertion that he was an

active member in the Akali Dal Mann party. The latter two details are particularly

important, as the IJ stated that Sethi’s membership in the political party and position

with the Gurudwara went to the heart of his asylum claim. The Akali Dal Mann

letter and affidavits therefore offer critical corroborating evidence supporting

Sethi’s testimony with respect to key findings underlying the adverse credibility

determination.

      In sum, the improper exclusion of corroborating evidence short-circuited the

IJ’s ability to judge the consistency and credibility of Sethi’s claims under the

totality of the circumstances, as required under the REAL ID Act. Oshodi, 729 F.3d

at 892–93. This exclusion denied Sethi a “full and fair” opportunity to present

evidence on his behalf, in violation of due process. See id. at 889; see also Khan,

237 F.3d at 1144. Such a violation is particularly troubling where, as here, the

agency’s denial of relief rested upon the IJ’s adverse credibility determination. See

Oshodi, 729 F.3d at 891. Thus, we grant the petition and remand to the BIA for

consideration of Sethi’s applications in light of Exhibits 7-A, 7-C, and 7-D.1



      1
         Because we remand for a new hearing on the basis of the due process
violation, we decline to reach the question whether substantial evidence supported
the IJ’s adverse credibility determination. We also decline to address the propriety
of the IJ’s exclusion of Exhibits 7-B, 7-E, 7-F, and 7-G.

                                           5
      We deny the petition for review of the motion to reopen as moot. See

Goldeshtein v. INS, 8 F.3d 645, 646 n.1 (9th Cir. 1993).

      Petition GRANTED and REMANDED in No. 10-72404.

      Petition DENIED in No. 13-73367.




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