                                                                              FILED
                            NOT FOR PUBLICATION                                OCT 22 2014

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



                            FOR THE NINTH CIRCUIT


RAVINDER SINGH,                                  No. 09-73469

              Petitioner,                        Agency No. A098-505-456

  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 February 3, 2014
                               Pasadena, California

Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**

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

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA

for further proceedings on an open record.

      The BIA focused on two intertwined issues in affirming the IJ’s

determination below: (1) despite his testimony about his active participation in the

Shiromani Akali Dal Mann party, Singh testified that his village belonged to a

parliamentary constituency that did not correspond to any of the listed

constituencies on an Indian Election Commission’s list of constituencies in Punjab

provided by the DHS attorney; and (2) the candidate Singh identified as the

winning candidate from his constituency in the 1999 parliamentary election was

not listed on the Indian Election Commission’s published candidate list for 1999

provided by the DHS attorney. The BIA also determined that the minor

inconsistencies identified by the IJ, when viewed cumulatively, further served to

weaken Singh’s credibility.

      Singh testified that his village was located in the Dakha1 constituency, a

constituency that was not on the list of 13 constituencies provided by the DHS



      1
        Singh was never asked to spell any names during his hearing. The
transcript spells “Dakha” as “Dakhan,” “Rajinder Kaur Bulara” as “Rijander Kaur
Bulara,” “Shiromani Akali Dal Mann” as “Shirmi Khali Da Ma,” and “Ludhiana”
as both “Gutiana,” and “Ludian.”

                                         2
 attorney. The DHS attorney represented to the IJ multiple times that the 13 listed

constituencies included “all the constituencies” in Punjab. Relying in part on this

representation, the IJ and BIA found Singh’s testimony not credible.

      It is unclear from the list itself, however, what the list is, whether it is a

complete list of constituencies in Punjab, or whether there are other constituencies

not on the list. In fact, as the record itself indicates, the list included only the 13

parliamentary constituencies in Punjab; it did not list the 117 assembly

constituencies in Punjab.2 Moreover, during oral argument before this court, the

government admitted that it made a mistake if Dakha was one of the 117 assembly

constituencies. In light of the government’s concession and the cryptic and

inadequate nature of the list itself—which does not state what it is or whether it is a

complete list of constituencies—we conclude that this perceived inconsistency is

not a cogent reason upon which an adverse credibility finding may be based. See

      2
         Although we do not rely on evidence outside the record in resolving this
case, we do note that the same official Indian Election Commission website used
by the DHS attorney confirms our conclusion that the DHS attorney’s list is not a
complete list of all the constituencies in Punjab. That website lists the 117
assembly constituencies in Punjab, one of which is Dakha, the constituency Singh
named as his constituency. See Statistical Report on General Elections, 1999 to the
Thirteenth Lok Sabha, Volume III, at 838-79 (listing all assembly constituencies
within Punjab), available at
http://eci.nic.in/eci_main/StatisticalReports/LS_1999/Vol_III_LS_99.pdf; see also
id. at 862-65 (showing the Dakha assembly constituency within the Ludhiana
parliamentary constituency).

                                            3
Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000) (“[A]dverse credibility

findings must be based on specific, cogent reasons that bear a legitimate nexus to

the finding.”).

      The other noted major inconsistency is bound up with the first. We are

therefore unable to determine whether the BIA and IJ would have found Singh

incredible based on the second major inconsistency alone.3

      Moreover, the minor inconsistencies identified by the IJ cannot support an

adverse credibility finding. The IJ noted that these minor inconsistencies “do not

independently justify an adverse credibility determination,” but “taken

cumulatively” and “[i]n light of the major inconsistencies . . . , these additional



      3
         Again, although we do not rely on this evidence in resolving this case, we
note that the candidate Singh named—Rajinder Kaur Bulara—was a Member of
Parliament from the Shiromani Akali Dal Mann party in 1989. See The Election
Commission of India, Key Highlights of General Elections, 1989 of the Nineth
Lok Sabah, at 79, available at
http://eci.nic.in/eci_main/SR_KeyHighLights/LS_1989/Vol_I_LS_89.pdf.
       She also ran in the 2002 Punjab state election from the Ludhiana West
assembly constituency. See The Election Commission of India, Statistical Report
on General Elections, 2002 to the Legislative Assembly of Punjab, at 145 available
at http://eci.nic.in/eci_main/StatisticalReports/SE_2002/Stat_rep_2002_PB.pdf.
       Moreover, Singh appears to have correctly identified the Shiromani Akali
Dal Mann candidate from Dakha in the 2002 Punjab state election as Bikramjit
Singh Khalsa. See id. at 144 (reporting candidate as Bikramjit Singh). He also
correctly stated that the Indian National Congress candidate was the winner from
the Dakha constituency in that election. See id. (reporting Indian National
Congress candidate Malkiat Singh Dakha the winner of the Dakha constituency).

                                           4
inconsistencies weaken [Singh’s] credibility such that the claim is deprived of the

‘requisite ring of truth.’” Yet all but one of the minor inconsistencies identified by

the IJ are in fact not inconsistencies, and the one remaining does not call Singh’s

credibility into question:

      1.     There is no inconsistency between Singh’s testimony on direct

             examination that he was in Ambala, Haryana in the days following a

             January 20, 2004 meeting, and his testimony on cross-examination

             that he initially went to Ludhiana when he left home on the night of

             January 20, 2004, and then traveled from place to place.

      2.     Both Singh and his father stated that Gurmeet Singh was killed in

             2003. Naginder Singh, a family friend, provided a different date.

             This discrepancy in the record is not of sufficient import to call into

             question Singh’s credibility.

      3.     Singh’s failure to mention that his father became disabled as a result

             of being beaten by the police is not an inconsistency. Singh was not

             asked what happened to his father after his father was released from

             police custody; he was asked what happened to his parents during

             their arrest. He answered the question asked, stating that his father

             was beaten. Merely omitting a detail in his testimony that he was not


                                             5
     asked to provide cannot support an adverse credibility finding. See

     Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). Moreover,

     Singh stated in his asylum application that his father “became

     handicapped” because of the police torture he experienced in January

     2004. This is consistent with his father’s and Naginder Singh’s

     affidavits.

4.   There is no inconsistency as to the date Singh went into hiding. Singh

     stated that he and his brother went into hiding in January 2004. Singh

     stated in his asylum application that his brother went to Ganga Nagar

     in March 2004, while they were already in hiding, and that his family

     never heard from his brother after April 2004. This statement is

     consistent with Naginder Singh’s affidavit that Singh and his brother

     went into hiding in January 2004 and Naginder Singh never saw them

     again. Finally, Singh’s father did not say that his eldest son went into

     hiding in April 2004; he stated that his eldest son had been missing

     since April 2004, at which point he was already in hiding. This

     account is consistent with Singh’s claim in his asylum application that

     his family had not heard from his eldest brother since April 2004.

5.   Speculation and conjecture that it made “little sense” for the police to


                                  6
             threaten to arrest the protesters but then not follow through with the

             threat cannot form the basis of an adverse credibility finding. See

             Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). This conclusion

             has particular force here because the police did follow through on

             their threat. The police arrested Singh and his brother at their home

             the following day when they were no longer in a public place and

             surrounded by spectators.

      6.     The IJ also listed as a minor inconsistency Singh’s purported inability

             to explain why he hosted a political meeting in his home despite

             knowing the police were monitoring his activity. Singh provided an

             explanation. The IJ’s speculation and conjecture about what someone

             in Singh’s position—a person fighting for an independent Sikh

             state—would or would not do cannot form the basis of an adverse

             credibility finding. See Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir.

             2006).

      We note that the BIA did not make an alternative finding that, even if

credible, Singh failed to establish past persecution.

      Finally, substantial evidence does not support the BIA’s determination that

Singh lacked an objectively reasonable fear of future persecution if returned to


                                          7
India. The BIA concluded that conditions have improved in India for Sikhs in

general and members of the Shiromani Akali Dal party in particular. The BIA’s

conclusion is wrong. The BIA confused the mainstream Shiromani Akali Dal

party with Singh’s Sikh separatist party, the Shiromani Akali Dal Mann party. The

Shiromani Akali Dal Mann party is not a mainstream party—it continues to

advocate passionately for a separate Sikh state and is treated differently and often

harshly by the authorities. See Singh v. Gonzales, 238 Fed.Appx. 285, 286-87 (9th

Cir. 2007) (unpublished).

      Moreover, Singh is not an average Sikh. Singh’s testimony and the

statements from Singh’s father and Naginder Singh indicate that the police

continue to harass his family.

      The country conditions on which the BIA relied fail to show whether

someone in Singh’s position—a member of the Shiromani Akali Dal Mann party

whose family is still being harassed by the police because of his political

advocacy—no longer faces persecution in India. See Marcos v. Gonzales, 410

F.3d 1112, 1120-21 (9th Cir. 2005) (requiring an individualized determination

whether the changed county conditions will affect the applicant’s specific

situation). The BIA’s determination is not supported by substantial evidence.

      For the foregoing reasons, we grant the petition for review and remand on an


                                          8
open record for a renewed credibility finding. We also remand for a new

determination of changed country conditions, taking into account that Singh

alleges that he is a member of the Shiromani Akali Dal Mann party, not the

mainstream Shiromani Akali Dal party.

      GRANTED and REMANDED on an open record.




                                        9
