                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 06 2011

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




                            FOR THE NINTH CIRCUIT



ASHOK KUMAR,                                     No. 06-75705

              Petitioner,                        Agency No. A095-453-336

  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 December 10, 2010
                             San Francisco, California

Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.

       Ashok Kumar (“Kumar” or “petitioner”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) denial of his applications for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). The BIA

affirmed the Immigration Judge’s (“IJ”) denial of asylum and withholding of

removal on the basis of an adverse credibility determination and also affirmed the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
IJ’s denial of CAT relief. This Court has jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1). We grant Kumar’s petition as to asylum and withholding of removal

and deny the petition as to relief under CAT.

      This Court reviews adverse credibility determinations for substantial

evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citations omitted).

Under this standard, the BIA’s determinations are to be upheld if they are

supported by “reasonable, substantial and probative evidence” in the record.

Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted).

Where “the BIA affirm[s] without opinion, this court directly reviews the

immigration judge’s decision as though it were the decision of the BIA.” Chete

Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004) (citations omitted).

      In this case, the IJ based her adverse credibility determination on the

following three grounds: (1) the written affidavits submitted by Kumar

“consistently fail to mention that respondent was harmed by police,” (2) Kumar

“does not speak like a political activist,” and (3) Kumar “sought to mislead the

court” about his reasons for traveling to Canada, based upon a discrepancy

between what he told immigration officials and his testimony in front of the IJ.

None of these grounds constitutes substantial evidence.




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      The IJ’s first finding can be disposed of quickly, because the IJ was simply

incorrect about the contents of the affidavits. While the affidavits of Raju Jagdish

and Bitu Tersem do not mention the police, the affidavit of Ajit Singh Manhas very

clearly does. Mr. Singh Manhas’ affidavit expressly states that petitioner was

“arrested and tortured by the police.” It also says that the reason Kumar “left the

country is that he was threaten[ed] by the police and the militants. His life was not

sa[f]e in India.” The IJ’s finding was based, at least in part, on the “collective

omission of this central fact.” When, as here, a petitioner’s testimony is

corroborated by one affidavit, that same testimony cannot be said to be called into

question by two other affidavits that do not even address the relevant claim, let

alone contradict it. This is particularly true when there is ample evidence in the

record of police misconduct in Jammu and Kashmir during this period, and the IJ

readily acknowledged that the “background documents raise the possibility of

future harm to respondent.” In short, the IJ’s mistaken reading of the affidavits

does not constitute substantial evidence in support of her adverse credibility

determination.

      Even absent the IJ’s mistake, her finding regarding the affidavits was based

upon impermissible speculation. From the supposed lack of mention of police

abuse, the IJ jumped to the conclusion that Kumar was “adding a fear of Police to


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his claim” in order to “overcome a finding that he could reasonably relocate to

another part of India.” With no other evidence in the record to indicate that Kumar

was lying about his encounters with the police, the IJ appeared prepared to

discount all of his testimony. The Ninth Circuit previously rejected this sort of

conclusory reasoning in a case where the BIA found that letters submitted by the

petitioner “appear to have been manufactured specifically to support an asylum

claim.” Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). As this Court refused

to do in Shah, we will not “uphold an adverse credibility finding that rests on

conjecture and speculation.” Id. (citations omitted).

       Similarly, the IJ’s finding regarding Kumar’s ability to “speak like a

political activist” relies on little more than the IJ’s subjective belief as to what a

political activist from Jammu should sound like. Id. The IJ stated that “[p]ublic

speaking is not the exclusive domain of highly educated people, and history is full

of uneducated but articulate activists and advocates for a cause. Respondent’s

testimony did not convince the court that he is such a person or that he is even

experienced in discussing human rights problems at the simplest level.” In the IJ’s

view, this “inability was more consistent with lack of experience than with lack of

education.” All of this could be true, and Kumar’s claims would be no less

credible or meritorious. Kumar’s supporting role as a member of the Jammu and


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Kashmir Human Rights Council did not require even basic knowledge of human

rights doctrine, much less the ability to communicate that knowledge convincingly

in a public forum, whether a human rights meeting or an immigration court.

      Under Ninth Circuit precedent, the IJ’s mischaracterization of Kumar’s

testimony cannot bear on his credibility, or lack thereof, and it certainly cannot be

said to constitute substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 912

(9th Cir. 1996) (reversing adverse credibility determination because IJ’s

“astonishment” at petitioner’s claim was not a cogent reason for dismissing

petitioner’s credibility); Kumar, 444 F.3d at 1052 (finding that IJ’s adverse

credibility finding based upon what brothers from India who had grown up and

fled the country together might or might not do was purely conjecture).

      Finally, the IJ pointed to the fact that “[d]espite telling U.S. officials in

September 2002 that he was in Canada to see the Pope, [Kumar] testified before

the court that he was unaware whether the Pope had even been in Canada.” From

there, the IJ speculated that Kumar “apparently sought to mislead the court about

his entry to Canada as part of World Youth Day.” At issue was Kumar’s “true

reason for leaving India in July of 2002.”

      Of the IJ’s three findings, this is the weakest. For one, it flies in the face of

clearly established Ninth Circuit precedent. The “fact that an asylum seeker has


                                             5
lied to immigration officers or used false passports to enter this or another country,

without more, is not a proper basis for finding her not credible.” Kaur v. Ashcroft,

379 F.3d 876, 889 (9th Cir. 2004) (citations omitted), superseded by statute on

other grounds as recognized by Singh v. Holder, 602 F.3d 982, 986 (9th Cir.

2010); see also Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (citations

omitted) (distinguishing between “false statements made to establish the critical

elements of the asylum claim from false statements made to evade INS officials”).

Here, the IJ uncritically took Kumar’s statements to immigration officials as true,

despite the fact that Kumar admitted he may have lied to them in order to avoid

detention, and then concluded that he must have “sought to mislead the court” with

his testimony. As with the IJ’s other findings, this is a bridge too far. Absent the

IJ’s creative speculation, Kumar’s knowledge regarding the whereabouts of the

Pope during the summer of 2002 do not go to the “heart of [Kumar’s] claim of

persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003).

      Because the IJ’s three findings in support of her adverse credibility

determination were based on a misreading of the administrative record, conjecture,

and speculation, rather than substantial evidence, we reverse that determination and

remand to the agency to consider whether Kumar, now considered credible, has

established eligibility for asylum.


                                           6
      Because the IJ found that Kumar did not qualify for asylum, she also

concluded that he did not meet the higher standard required for withholding of

removal. On remand, the BIA shall also determine, in the first instance, whether

Kumar has established eligibility for withholding of removal. See Karouni v.

Gonzales, 399 F.3d 1163, 1178 (9th Cir. 2005) (citations omitted).

      To be eligible for relief under CAT, an applicant bears the burden of proving

that it is “more likely than not” that he would be tortured upon return to the

proposed country of removal. 8 C.F.R. § 208.16(c)(2). In this case, the IJ

acknowledged that there was some “credible evidence in the record about torture

by the Indian government,” but nevertheless concluded that the “record does not

support the conclusion that it is more likely than not that [Kumar] will be tortured

if returned to India.” Because we cannot say that the evidence compels the

opposite conclusion, we affirm the BIA’s decision as to Kumar’s CAT claim.

      Petition for review GRANTED in part, DENIED in part, and REMANDED

to the BIA for further proceedings.

      Each party shall bear its own costs on appeal.




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