                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 11 2010

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




                            FOR THE NINTH CIRCUIT



SUKHWINDER SINGH,                                No. 09-71716

              Petitioner,                        Agency No. A098-516-321

  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 July 15, 2010
                               Seattle, Washington

Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.

       Sukhwinder Singh, a citizen and native of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) affirmance of the immigration judge’s

(“IJ”) order denying him asylum, withholding of removal, and Convention Against

Torture (“CAT”) relief. We have jurisdiction under 8 U.S.C. § 1252, and we grant

the petition and remand on an open record.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The BIA affirmed the IJ’s denial of relief on the ground that he lacked

credibility. Because the BIA reviewed the IJ’s decision for clear error, this court

looks to the IJ’s decision “as a guide to what lay behind the BIA’s conclusion.”

Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (internal quotation marks

omitted). Here, although the BIA explicitly discussed only three of the IJ’s bases

for the adverse credibility determination, it concluded that these inconsistencies

“and other discrepancies support the Immigration Judge’s adverse credibility

finding.” (Emphasis added.) We accordingly review the BIA’s decision as well as

the portion of the IJ’s decision identifying “other discrepancies.” See Morgan v.

Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008).

      We review adverse credibility findings under the substantial evidence

standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). Under this

standard, we may reverse the BIA’s decision only if the petitioner presents

evidence that is “so compelling that no reasonable factfinder could find that he was

not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (internal

quotation marks omitted). Before making an adverse credibility determination in a

pre-REAL ID Act case such as this one, the IJ must give the petitioner “a

reasonable opportunity to offer an explanation of any perceived inconsistencies.”




                                          2
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999), superseded by statute1

as stated in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2nd Cir. 2008) (per

curiam).

      Here, Singh was denied a reasonable opportunity to explain almost all of the

inconsistencies that the BIA and the IJ identified in support of the adverse

credibility determination. These inconsistencies therefore cannot support the

adverse credibility determination. See id. Although Singh was given an

opportunity to explain an inconsistency regarding the year he lost his job — 1999

or 2000 — that inconsistency alone cannot support the adverse credibility

determination because it does not go to the heart of Singh’s claim, and because the

IJ gave no reason to discredit Singh’s explanation. See Soto-Olarte, 555 F.3d at

1091 (failure to consider a proffered explanation); Morgan, 529 F.3d at 1206-07

(inconsistency not going to heart of claim). Further, the lack of corroborative

affidavits from Singh’s family in India does not support the adverse credibility

finding because an otherwise credible applicant need not provide corroborative

evidence, see Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996), and,

regardless, it is “inappropriate to base an adverse credibility determination on an

applicant’s inability to obtain corroborating affidavits from relatives or


      1
          The changes made by the statute do not apply here.

                                           3
acquaintances living outside of the United States,” Arulampalam v. Ashcroft, 353

F.3d 679, 688 (9th Cir. 2003) (internal quotation marks omitted). Thus, none of

the agency’s proffered reasons constitute substantial evidence supporting the

adverse credibility determination.

        Moreover, even if this adverse credibility determination were supported by

substantial evidence, the BIA erred in failing to conduct a distinct analysis for

relief under CAT. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001)

(holding that an adverse credibility determination in the asylum context should not

“wash over” a claim for CAT relief). The failure to consider Singh’s country

report and the over-reliance on the adverse credibility determination made in the

asylum context were erroneous.

        Disregarding the inconsistencies that Singh was not given an opportunity to

explain, the evidence is insufficient to support the BIA’s adverse credibility

determination. We therefore grant the petition. On remand, should the agency

desire to rely on any inconsistencies that go to the heart of his claim, Singh must be

advised of the purported inconsistencies and afforded the opportunity to explain

them.




        Petition for review GRANTED and REMANDED.


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