                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



PARAMJIT SINGH,                                  No. 06-74678

              Petitioner,                        Agency No. A071-947-948

  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 November 2, 2010
                             San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**

       Paramjit Singh ('Singh'), a native and citizen of India, petitions for review

of a decision of the Board of Immigration Appeals ('BIA') affirming an

Immigration Judge's ('IJ') decision to deny Singh's application for asylum,

withholding of deportation, and relief under the Convention Against Torture

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New Yorµ, sitting by designation.
('CAT'). Singh contends that the BIA's adverse credibility determination and the

IJ's finding that he failed to establish persecution on a protected ground were not

based on substantial evidence. We deny the petition.

      We review for substantial evidence a finding of adverse credibility. Wang v.

INS, 352 F.3d 1250, 1253 (9th Cir. 2003). An adverse credibility determination

will be upheld when the decision is based on 'specific and cogent reasons,' such as

inconsistencies in the petitioner's testimony that 'go to the heart of the asylum

claim.' Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). We must uphold the

IJ's and BIA's findings unless the evidence presented would compel a reasonable

finder of fact to reach a contrary result. See Don v. Gonzales, 476 F.3d 738, 741

(9th Cir. 2007).

      The inconsistencies in Singh's testimony regarding his arrests go to the heart

of his claim of persecution and are substantial. See Chebchoub v. INS, 257 F.3d

1038, 1043 (9th Cir. 2001).

      In his initial application in 1991, Singh listed only a single arrest in 1984

while living in India, while in his subsequent testimony, Singh stated that he had

been arrested three times between 1984 and 1986. There were also discrepancies

between Singh's testimony and his personal statement as to when his second arrest

occurred.


                                           2
      Singh also submitted to the IJ a letter from his wife that mentioned only two

arrests during that same period. Singh's explanation for the discrepancy--that the

missing arrest was not in the newspaper, and that he and his wife were only

engaged at the time and just never talµed about it--does not compel the conclusion

that he is credible. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).

Absent credible testimony, Singh's asylum and withholding of removal claims also

fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

For the foregoing reasons, the petition is DENIED.




                                          3
                                                                             FILED
Singh v. Holder, No. 06-74678                                                 DEC 02 2010

                                                                         MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting:                                           U.S . CO U RT OF AP PE A LS




      In reviewing the Board of Immigration Appeals' (BIA) ruling affirming the

Immigration Judge's (IJ) credibility finding, we 'independently evaluate each

ground cited by the BIA' and decide whether there is substantial evidence to

support the finding. Chen v. I.N.S., 266 F.3d 1094, 1098 (9th Cir. 2001), overruled

on the other grounds by INS v. Ventura, 537 U.S. 12 (2002). Although this

standard is deferential, '[t]he BIA must have a legitimate articulable basis to

question the petitionerùs credibility, and must offer a specific, cogent reason for any

stated disbelief.' Shah v. I.N.S., 220 F.3d 1062, 1067 (9th Cir. 2000) (internal

quotations omitted).

      Here, the basis for the adverse credibility finding was 1) Singh's testimony

regarding the date of his second arrest in relation to the 1984 Golden Temple attacµ

and 2) the fact that a letter submitted by Singh's wife did not mention his second

arrest. Neither of these grounds provides substantial evidence to support an

adverse credibility finding.

      First, there is no inconsistency arising from Singh's testimony about his

second arrest. Although Singh admittedly described his arrest as happening

'during' the attacµ and later testified that he was arrested 'a weeµ before' the

attacµ, these were consistent, albeit differently-worded, descriptions of the arrest in
relation to a weeµ-long, chaotic event.

      Second, the omission of Singh's second arrest from his wife's letter also

fails to support the IJ's credibility finding. The omission does not directly

contradict Singh's testimony in any way. See Singh v. Ashcroft, 301 F.3d 1109,

1112 (9th Cir. 2002) (rejecting an adverse credibility determination where

petitioner's testimony mentioned injuries that a physician's letter did not). Further,

neither the IJ nor the BIA gave specific, cogent reasons why the omission affected

Singh's credibility. The only proffered explanation was the IJ's assumption that

Singh's wife would have µnown about the second arrest, but '[s]peculation and

conjecture cannot form the basis of an adverse credibility finding.' Kaur v.

Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (quoting Shah, 220 F.3d at 1071).

      Moreover, Singh gave a reasonable explanation for the inconsistency, an

explanation that both the IJ and BIA dismissed only in passing. When a petitioner

offers an explanation for a factual inconsistency, however, the BIA must 'address

in a reasoned manner the explanations that [the petitioner] offers for these

perceived inconsistencies.' Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.

2009)(internal quotations omitted). The BIA's conclusion that Singh's explanation

is 'simply not plausible' has no support in the record. The BIA offers no reasons

for its conclusion that Singh's wife, to whom he was engaged but not living with,

must have µnown about his second arrest. The BIA unjustifiably cast aside
Singh's testimony that he did not discuss the second arrest with his wife in an

attempt to put the incident behind him.

      The majority also inexplicably finds support for the IJ's adverse credibility

finding by looµing to other inconsistencies in Singh's declarations and testimony.

Those inconsistencies were never cited by the BIA or the IJ. The majority expands

the scope of its review to the entire factual record rather than focusing, as the law

requires, on a review of the sufficiency of the BIA's stated grounds. See Kin v.

Holder, 595 F.3d 1050, 1055 (9th Cir. 2010) ('Our review focuses solely on the

actual reasons relied upon for the adverse credibility determination.').

      Because I would conclude that the adverse credibility finding is not

supported by substantial evidence, I would grant the petition for review and

remand with directions to the agency to address the merits of Singh's application

for asylum, withholding of removal, and relief under the Convention Against

Torture. I therefore respectfully dissent.
