                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 16 2011

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




                            FOR THE NINTH CIRCUIT



AJIT SINGH,                                      No. 09-73276

              Petitioner,                        Agency No. A072-174-109

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

              Respondent.


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

                     Argued and Submitted November 4, 2010
                              Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**

       Petitioner Ajit Singh appeals the decision of the Board of Immigration

Appeals (BIA) affirming an Immigration Judge's (IJ) denial of his claims for

asylum, withholding of removal 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 Claudia Wilµen, United States District Judge for the
Northern District of California, sitting by designation.
(CAT). We have jurisdiction under 8 U.S.C. y 1252. We grant in part the petition

for review, deny it in part and remand for further proceedings.

      The BIA's determination that an alien is not eligible for asylum must be

upheld if supported by reasonable, substantial and probative evidence in the

record; reversal should occur only where the evidence is such that a reasonable fact

finder would have to conclude that the requisite fear of persecution existed. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992); Yazitchian v. INS, 207 F.3d 1164, 1168

(9th Cir. 2000). Administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. y

1252(b)(4)(B). Credibility determinations are also reviewed for substantial

evidence and, thus, must be upheld unless the evidence presented would compel a

reasonable fact finder to reach a contrary result. de Leon-Barrios v. INS, 116 F.3d

391, 393 (9th Cir. 1997). An adverse credibility determination must be supported

by 'specific and cogent reasons.' Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir.

2010). In pre-REAL ID Act cases, such as this one, the inconsistencies supporting

an adverse credibility finding must 'go to the heart' of a petitioner's claim. Id.

      'Where the BIA reviews the IJ's decision de novo, our review is limited to

the BIA's decision, except to the extent the IJ's opinion is expressly adopted.'




                                     Page 2 of 8
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000); see also Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).

      Petitioner testified that he was persecuted in India based on his membership

in the Aµali Dal (Mann) political party. Petitioner claimed that his brother,

Geswinder Singh, was also a member of the party and was arrested during a

January 1994 police raid of the offices of Today's Voice, the newspaper at which

Geswinder worµed. Petitioner stated that Geswinder was never released and that

he was not aware whether or not Geswinder was still alive.

      In response to Petitioner's testimony, the Department of Homeland Security

(DHS) proffered a United Nations (U.N.) report, which stated,

      The following staff members of the Punjab daily Aj Dj Awaz
      (Today's Voice) were reportedly arrested on 11 January 1994
      following a police raid on the premises of the newspaper: Gurdeep
      Singh, Malµir Singh, Jasbir Singh Khalsa, Jasbir Singh Manowan,
      Debvinder Singh, Amriµ Singh, Ajab Singh and Kuldeep Singh.

After the list of names was read at the hearing, the following cross-examination of

Petitioner ensued:

      Ï:     Did you hear your brother's nameá

      A:     Yes.

      Ï:     Which name was your brother's nameá

      A:     Javinder (phonetic sp.)


                                       Page 3 of 8
      Ï:     Sir, I didn't read the name Javinder.

      A:     No, no, no, no, no. Geswinder Singh.

      Ï:     Sir, there is no Geswinder Singh on this list. That's why I asµed you
             if your brother used any other name.

      A:     I don't µnow whether he used another name or not.

      Ï:     Sir, if your brother used another name don't you thinµ you'd µnowá

      A:     Sometimes the brother does not tell me everything.

      The IJ concluded that Petitioner was not credible based on two grounds:

(1) the absence of Geswinder's name in the U.N. report and (2) inconsistencies

regarding Petitioner's contact with his family in India. Notably, the IJ did not

disbelieve Petitioner's testimony about his detention and beating. In affirming the

IJ's adverse credibility finding, the BIA relied solely on the U.N. report. We do

not find this reason cogent or sufficient to support a finding that Petitioner was not

credible.

      It is not clear that Petitioner's brother's name was not in the report. When

the list was read, Petitioner believed that he had heard his brother's name,

apparently understanding 'Debvinder' to be the same as 'Geswinder' or

'Javinder.' Given potential variations in the English spelling of Punjabi names,

Petitioner was not necessarily incorrect. Kaur v. Ashcroft, 379 F.3d 876, 886-87



                                     Page 4 of 8
(9th Cir. 2004) (discussing, with approval, petitioner's argument that a 'phonetic

transliteration' of a Punjabi name 'has many spellings in English, each of which

are interchangeably acceptable as the same word or name'), superseded by statute

on other grounds, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as

recognized in Singh v. Holder, 602 F.3d 982, 986 (9th Cir. 2010). However, the IJ

did not inquire into Petitioner's assertion that his brother's name was on the list,

which itself undermines the adverse credibility finding. See Kaur, 379 F.3d at 887

('An adverse credibility finding is improper when an IJ fails to address a

petitioner's explanation for a discrepancy or inconsistency.'). Further, the U.N.

report could have been inaccurate and incomplete, and Petitioner would have been

hard-pressed to prove, more than thirteen years after the raid, that his brother had

been arrested. Indeed, the U.N. report did not indicate the source of the names or

offer any indication as to the list's accuracy. Even if Geswinder was not arrested

in the raid, Petitioner could have been telling the truth when he said he believed

that his brother was. Nothing contradicts Petitioner's testimony about his own

detention and beating. Thus, the U.N. report is not necessarily inconsistent with

Petitioner's testimony. Because the U.N. report does not contradict Petitioner's

testimony, it cannot support the BIA's adverse credibility finding. Singh v.

Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002). Without a viable reason to support


                                     Page 5 of 8
the BIA's adverse credibility determination, we must accept Petitioner's testimony

as credible. Kaur, 379 F.3d at 890.

      Neither the BIA nor the IJ made an explicit finding that, if true, Petitioner's

testimony established past persecution sufficient to support a claim for asylum.

Instead, both the BIA and the IJ assumed that Petitioner would be entitled to a

presumption that he had a well-founded fear of future persecution, if his testimony

were true.

      The BIA affirmed the IJ's decision that evidence of a fundamental change in

circumstances in India rebutted this presumption. The IJ relied on State

Department and Central Intelligence Agency (CIA) reports. Most specifically, the

IJ noted that the Aµali Dal (Mann) 'is a legal political party in India and continues

to run candidates for office.' However, the only apparent basis in the record for

the IJ's statement is the CIA profile of India, which stated that, at around the time

of the hearing, the 'Shiromani Aµali Dal' party held at least four seats in India's

legislature. The profile did not indicate whether these seats were held by the Aµali

Dal (Mann) party or whether members of that party were subject to persecution.

This evidence was not tailored to Petitioner, so the IJ did not maµe an

individualized determination that changed conditions in India would affect

Petitioner's circumstances. Thus, assuming that Petitioner's credible testimony


                                      Page 6 of 8
supported a presumption that he had a well-founded fear of future persecution,

DHS did not rebut it. See, e.g., Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th

Cir. 2005); Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 997 (9th Cir. 2003)

(citing Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998)).

      Petitioner also challenges the denial of his request for relief under the CAT.

The BIA summarily affirmed the IJ's decision that, even if true, Petitioner's

testimony would not establish that it is more liµely than not that a government

official or person acting in an official capacity would torture him if he returned to

India. On appeal, Petitioner does not identify evidence justifying a contrary

conclusion.

      In sum, we conclude that the BIA's adverse credibility finding was not

supported by substantial evidence and that the evidence supplied by DHS would

not have rebutted a presumption that Petitioner had a well-founded fear of future

persecution upon return to India. However, the BIA's denial of relief under the

CAT is supported by substantial evidence.

      As noted above, neither the BIA nor the IJ expressly ruled on whether

Petitioner's testimony, if credible, supported his claims for asylum and

withholding of removal. Accordingly, we grant the petition for review in part and

remand Petitioner's case to determine whether he is eligible for asylum or


                                     Page 7 of 8
withholding of removal. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)

(stating that 'the proper course, except in rare circumstances, is to remand to the

agency for additional investigation') (citation and internal quotation marµs

omitted). On remand, Petitioner's testimony concerning the arrest and

disappearance of his brother, Geswinder Singh, shall be deemed credible. The

petition for review is denied to the extent that it is based on the denial of relief

under the CAT.

       PETITION GRANTED IN PART AND DENIED IN PART, AND

REMANDED. Costs on appeal are awarded to the petitioner.




                                      Page 8 of 8
                                                                            FILED
Singh v. Holder, No. 09-73276                                                MAR 16 2011

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




      I dissent. We are required to defer to the factfinding conducted by the

Immigration Judge ('IJ') and the Board of Immigration Appeals ('BIA') unless

'no reasonable factfinder could have reached the agency's result.' Don v.

Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (quoting Thangaraja v. Gonzales, 428

F.3d 870, 874 (9th Cir. 2005)). Ignoring this deferential standard of review, the

panel majority overturns the IJ's adverse credibility determination based purely on

speculative arguments that Petitioner never advanced before the BIA, in his briefs,

or at oral argument.

      Petitioner Ajit Singh ('Singh') seeµs asylum on the basis that he was

persecuted in India because of his activities on behalf of the Aµali Dal (Mann)

Party ('ADM'), a secessionist movement which supports the creation of an

independent state for Siµhs called 'Khalistan.' Singh had testified that he had

become involved in the ADM through his brother, and that he spoµe out at an

ADM rally after his brother was allegedly arrested and detained for his pro-

Khalistan views. He claims that since his brother's arrest, he remains unaware of

his brother's whereabouts. On account of his involvement with the ADM and his

relationship with his brother, Singh claims that the Punjab state police targeted

him. Fearing for his life, Singh went into hiding and eventually fled India.
       The IJ did not believe Singh's story. The IJ's adverse credibility

determination was based upon a United Nations ('UN') report that contradicted

Singh's testimony that his brother was arrested and detained in a police raid of

Today's Voice, a newspaper which supports the creation of Khalistan. Singh had

testified that the police arrested eight people in the raid, and that his brother,

Geswinder Singh, was one of the eight. The UN report on the Today's Voice raid

identified the eight people who were arrested; Singh's brother's name was not

listed. The IJ found that this inconsistency went to the heart of Singh's asylum

application. Singh had testified that he joined the ADM in part because of his

brother's influence and that it was his brother's arrest after the Today's Voice raid

which prompted him to speaµ out at the ADM rally on January 26, 1994. Singh

further claimed that it was his participation in that rally which allegedly made him

a target for the police and prompted him to go into hiding. Lacµ of credibility on

Singh's testimony about his brother's arrest would therefore call into doubt

whether Singh and his family actually suffered political persecution in India at all.

       Contrary to the majority's analysis, Singh did have an opportunity to explain

this contradiction before the IJ. When pressed for an explanation, Singh suggested

that his brother might have been using a different name, but that he was never

aware that his brother used a name other than Geswinder Singh.


                                            2
      Contrary to what the majority concludes, the IJ directly addressed Singh's

contradictory testimony, discussed his purported explanation, and rejected it. The

IJ was correct to reject Singh's purported explanation that his brother might have

been using a different name, since it amounted to nothing more than speculation.

Singh nonetheless had another opportunity to explain the contradiction in his

appeal to the BIA. Instead, his brief before the BIA repeats the explanation Singh

offered before the IJ and also suggests, without any basis, that the UN report might

have been inaccurate. Singh's briefs before this court liµewise repeat these

arguments without further elaboration. These non-responsive explanations do not

compel a reasonable factfinder to conclude that the IJ erred in deeming Singh not

credible.

      In the face of substantial evidence supporting the IJ's adverse credibility

determination, the majority manufactures speculative arguments in its efforts to

explain away the contradictions in Singh's testimony. The majority argues that

'[i]t is not clear that [Singh]'s brother's name was not in the [UN] report' because

of 'potential variations in the English spelling of Punjabi names.' Maj. Memo. at

4. Singh never made this argument before the IJ, the BIA, or in his briefs to this

court. At oral argument, Singh's counsel noted for the first time that the name

Jasbir Singh, which is mentioned in the UN report, was 'similar' to the name of


                                          3
Singh's brother, Geswinder Singh, and implied that the report might actually be

referring to 'Geswinder' when it mentions 'Jasbir.' When asµed whether the

names 'Jasbir' and 'Geswinder' were equivalent names in India, however, counsel

equivocated, and simply repeated her assertion that the names were 'similar.'

Further, the UN report does not actually list the name 'Jasbir Singh,' but instead

names two people with similar names: 'Jasbir Singh Khalsa' and 'Jasbir Singh

Manowan.' At argument, Singh's counsel conceded that 'Jasbir Singh Manowan'

did not refer to Singh's brother. When asµed whether the name 'Jasbir Singh

Khalsa' bore any relationship to Singh's family, counsel responded 'no,' but then

explained that 'Khalsa' was not a family name, but a title used by some supporters

of an independent Khalistan. Counsel nonetheless conceded that Singh never

testified that 'Jasbir Singh Khalsa' might have actually referred to his brother,

Geswinder Singh.

      The panel appears to assume that the requirement that the IJ provide 'a

specific, cogent reason' for an adverse credibility determination is license for us to

conduct de novo review of the record and to introduce facts and arguments that

were never presented by the parties. See generally Hartooni v. I.N.S., 21 F.3d 336,

342 (9th Cir. 1994) ('[T]he [IJ] must have a legitimate articulable basis to question

the petitioner's credibility, and must offer a specific, cogent reason for any stated


                                           4
disbelief.'). In doing so, the majority forgets that it is the petitioner's burden, not

the court's, to explain why no reasonable factfinder could have reached the IJ's

result. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) ('So long as one of

the identified grounds is supported by substantial evidence and goes to the heart of

[petitioner's] claim of persecution, we are bound to accept the IJùs adverse

credibility finding.' (quoting Wang v. I.N.S., 352 F.3d 1250, 1259 (9th Cir. 2003)

(first alteration omitted)). See also 8 U.S.C. y 1252(b)(4)(A) ('[T]he court of

appeals shall decide the petition only on the administrative record on which the

order of removal is based.'). Here, Singh's testimony about his brother's arrest

was contradicted by an official UN report, which did not list his brother's name

among those who were arrested. This contradiction formed a 'legitimate

articulable basis to question [Singh's] credibility.' Hartooni, 21 F.3d at 342. The

IJ further explained that this contradiction went to the heart of Singh's application

because his brother played a central role in Singh's purported narrative. If this

does not form a 'specific, cogent reason' to support the IJ's adverse credibility

finding, then I do not µnow what does.

      Because Singh points to no evidence that compels us to conclude that the IJ

erred, I would deny the petition for review.




                                            5
