                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 5 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

AMANDEEP SINGH,                                 No.    15-71343

                Petitioner,                     Agency No. A088-716-329

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                    Argued and Submitted November 15, 2017
                            San Francisco, California

Before: BERZON and FRIEDLAND, Circuit Judges, and SESSIONS,** District
Judge.

      Amandeep Singh (“Singh”) 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”).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
      1. Singh claims that he is a member of the Shiromani Akali Dal, a political

party that promotes the establishment of a separate state for Sikhs in India. Singh

submits that he participated in rallies, demonstrations, and other politically

motivated activities, and as a result encountered three persecutory incidents: once

being beaten and threatened with death by civilians belonging to the Badal Party,

and twice being arrested, detained, and tortured by Punjabi Police. The

Immigration Judge (“IJ”) found Singh not credible, and the BIA upheld that

determination. The agency’s credibility determination is supported by substantial

evidence.

      2. This Court reviews “denials of asylum, withholding of removal, and CAT

relief for substantial evidence and will uphold a denial supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Ling

Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2013)) (internal quotation marks omitted).

Specifically, we “review factual findings, including adverse credibility

determinations, for substantial evidence.” Yali Wang v. Sessions, 861 F.3d 1003,

1007 (9th Cir. 2017) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014))

(internal quotation marks omitted). This means that the agency’s “findings of fact

are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[O]nly the most extraordinary


                                          2                                      15-71343
circumstances will justify overturning an adverse credibility determination.”

Bingxu Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014) (quoting Shrestha v.

Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)).

      3. Under the REAL ID Act, “there is no presumption that an applicant for

relief is credible, and the IJ is authorized to base an adverse credibility

determination on ‘the totality of the circumstances’ and ‘all relevant factors.’”

Ling Huang, 744 F.3d at 1152–53 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Such

factors include the alien’s “demeanor, candor, or responsiveness.” 8 U.S.C. §

1158(b)(1)(B)(iii). Demeanor findings “should specifically point out the

noncredible aspects of the petitioner’s demeanor.” Shrestha v. Holder, 590 F.3d

1034, 1044 (9th Cir. 2010). The IJ may also consider inconsistencies between the

petitioner’s statements and other evidence in the record. 8 U.S.C. §

1158(b)(1)(B)(iii). “When an inconsistency is cited as a factor supporting an

adverse credibility determination, that inconsistency should not be a mere trivial

error such as a misspelling, and the petitioner’s explanation for the inconsistency,

if any, should be considered in weighing credibility.” Shrestha, 590 F.3d at 1044

(citations omitted). Regardless of the factors relied upon by the IJ, the IJ must

provide “specific and cogent reasons” to support an adverse credibility

determination. Id. at 1042.




                                           3                                    15-71343
      4. The BIA cited six specific findings made by the IJ that, in light of “the

totality of the circumstances,” the BIA believed supported the IJ’s adverse

credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii). The first two—Singh’s

secular appearance and his admission that he had not been baptized as a Sikh—are

speculative and unconvincing. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.

2000) (“Speculation and conjecture cannot form the basis of an adverse credibility

finding.”). However, the other four are sufficient to support an adverse credibility

determination. First, Singh’s demeanor when testifying—notably his “stiffness,

crossed arms, and rote testimony”—was inconsistent with someone who suffered

the abuse detailed in his declaration. Second, Singh’s Shiromani Akali Dal

membership card appeared inauthentic due to the “crude pasting” of Singh’s

photograph over the seal. Third, Singh’s medical documentation was not

contemporaneously prepared and did not explain how the information was

retrieved. Finally, Singh’s father’s affidavit was written in English even though

his father is unable to read or write English and no certificate of translation was

attached.

      5. Singh argues that the IJ’s demeanor findings were “arbitrary, capricious,

and are not evidenced on the record.” We disagree. The IJ’s “specific, first-hand

observations” are “precisely the kind of credibility cues that are the special

province of the factfinder.” See Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.


                                          4                                      15-71343
2017). Further, the IJ is not required to conduct a running commentary on an

alien’s credibility on the hearing record. Id. at 1264. In its demeanor findings, an

IJ can consider “the expressions of [the petitioner’s] countenance, how he sits or

stands, whether he is inordinately nervous, his coloration during critical

examination, the modulation or pace of his speech and other non-verbal

communication.” Ling Huang, 744 F.3d at 1153 (quoting Shrestha, 590 F.3d at

1042).

       Singh also argues that it was unreasonable for the agency to discredit his

documentary evidence. There is sufficient evidence in the record, however, for

this court to “objectively verify [that] the IJ ha[d] a legitimate basis to distrust the

documents.” Lin v. Gonzales, 434 F.3d 1158, 1162 (9th Cir. 2006). Moreover, the

IJ is not required to accept Singh’s documentation as valid; “rather, the petitioner

has the burden to satisfy the trier of fact by offering credible and persuasive

evidence.” Yali Wang, 861 F.3d at 1007–08. In sum, the IJ’s demeanor findings

were sufficiently specific, and the IJ provided specific and cogent reasons for why

the questionable nature of Singh’s documentary evidence undermined his

credibility.

       6. The BIA considered the totality of the record and concluded that the IJ’s

adverse credibility finding was not clearly erroneous. The BIA reasoned that

Singh’s lack of credibility “undermines all of his claims” and that “[i]n the absence


                                            5                                     15-71343
of credible testimony, the record is not sufficient to meet his burden of proving he

suffered past persecution or has a well-founded fear of being persecuted in the

future.” The BIA therefore affirmed the IJ’s ruling denying Singh’s asylum and

withholding of removal claims. The BIA also held that the IJ’s finding that Singh

does not have a clear probability of being tortured if returned to India is not clearly

erroneous. The BIA therefore affirmed the IJ’s ruling denying Singh’s CAT claim.

      7. There is no evidence that compels any reasonable fact-finder to conclude

that the agency’s adverse credibility determination was incorrect. See 8 U.S.C. §

1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). After

considering the totality of the circumstances, the agency reached a reasonable

conclusion that Singh’s was not credible. Singh’s lack of credibility undermines

all of his claims, and the record is not sufficient to meet his burden of proving he

suffered past persecution, has a well-founded fear of being persecuted in the future,

or that it is more likely than not that he would suffer torture by or with the

acquiescence of a government official in India. Because Singh was found not

credible, eligibility for CAT protection would have to be based exclusively on

State Department country reports. Based on those reports, there is no reason to

believe that Singh could not safely relocate to another region in India.

      8. Accordingly, the agency’s adverse credibility determination is supported

by substantial evidence, and Singh cannot satisfy his burden of proving that he is


                                           6                                     15-71343
eligible for asylum and withholding of removal. Similarly, the agency’s

determination that Singh is not entitled to protection under the CAT is supported

by substantial evidence. For the foregoing reasons, Singh’s petition for review of

the BIA’s decision is DENIED.




                                         7                                   15-71343
                                                                               FILED
Amandeep Singh v. Sessions, No. 15-71343
                                                                               JAN 05 2018
Berzon, J., dissenting:                                                   MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I would grant the petition. Although there may be other bases for an adverse

credibility finding, the factors actually relied upon by the Immigration Judge (“IJ”)

and Board of Immigration Appeals (“BIA”) do not constitute substantial evidence

supporting the finding.1 And we must review the agency’s reasoning, not what it

might have said. See, e.g., Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th

Cir. 2005).

      First, as the majority recognizes, central reasons given by the BIA for

approving the adverse credibility determination should not have been considered.

Lack of adherence to Sikh practice and failure to be baptized are not probative of

whether petitioner was likely to support a political organization advocating for a

Sikh state. Sikhs, like other distinct groups, have ties to each other that go beyond

strict religious adherence; less religious members may well support the interests of

the more religious, or work to advance the cultural interests of the overall

community. See, for example, regarding the secular Jews who largely created the



      1
       Notably, the Attorney General’s brief implicitly recognizes that the BIA’s
reasoning does not stand up, as it relies heavily on factors not mentioned by the
agency. Commendably, the government attorney arguing before us acknowledged
before argument that this reliance in the brief on different reasoning than that
adopted by the BIA was improper.
State of Israel, Walter Laqueur, The History of Zionism 133, 170 (3rd ed. 2003);

Yaacov Yadgar, Sovereign Jews: Israel, Zionism, and Judaism 82, 103-04 (2017).

      Second, and critically, neither the IJ nor the BIA relied on either the

membership card or the medical documentation as affirmative support for the

adverse credibility finding. Instead, the IJ, with BIA approval, declined to consider

the card as “persuasive corroboration of his supposed political activities in India,”

and “[did] not consider the medical documentation . . . as supporting the bona fides

of [Singh’s] past persecution claim.”2

      As to the father’s affidavit, Singh offered an explanation concerning why the

document was in English—that Indian courts can translate Punjab statements into

English. The IJ did not comment on that explanation or state why it was

disbelieved. Without such comment, that factor is not evidence for an adverse

credibility finding. See, e.g., Ai Jun Zhi v. Holder, 751 F.3d 1088, 1092-93 (9th

Cir. 2014); Osorio v. INS, 99 F.3d 928, 933 (9th Cir. 1996) (holding that the

agency “must address in a reasoned manner” any explanations offered by

      2
         I note as well that there is nothing particularly odd about a medical doctor
having records regarding medical treatment provided four years before. And when
doctors issue reports on medical treatment, they do not usually explain how they
are “able to reconstruct the record of medication and treatment,” as the BIA would
require. That the doctor had not provided the patient with a written medical report
at the time of treatment is also not unusual; although many doctors in this country
now do so, that is a fairly recent practice.

                                           2
petitioners for “perceived inconsistencies”).

      That leaves, as supporting the adverse credibility finding, demeanor. As far

as I can determine, no Ninth Circuit case has approved reliance on demeanor alone

as substantial evidence for an adverse credibility finding. I would not do so here.

      The demeanor assessment relied on the IJ’s impression that Singh’s

“demeanor was . . . inconsistent with someone who had undergone several arrests

and beatings,” because Singh “sat stiff” and crossed his arms, and because “[h]is

testimony was rote and appeared to have been rehearsed.” Of course, court

testimony is usually “rehearsed,” to a degree. The arrests and beatings were four

years before Singh testified, so any severe emotional impact could well have

passed. And, having read the testimony myself, it appears considerably more

coherent and responsive than is often the case.

      Further, demeanor is often in the eyes of the beholder. And when the

beholder’s several other reasons for reaching an adverse credibility finding

otherwise must, as here, be disregarded, we should be particularly skeptical about

giving controlling weight to a demeanor assessment. Cf. Penasquitos Village Inc.

v. NLRB, 565 F.2d 1074, 1086 (9th Cir. 1977) (Duniway, CJ., concurring in part

and dissenting in part) (“I doubt if there are many cases in which the fact finder

relies on demeanor alone. There may not be any; I hope that there are none. . . .

                                          3
Anyone who really believes that he can infallibly determine credibility solely on

the basis of observed demeanor is naive.”).

      This skepticism is heightened, in my view, when some of the reasons given

are downright silly. The IJ here, for example, found the membership card

presented suspect because it said Singh was an “Active Member,” although he had

just joined. But many organizations have categories of membership that include

“active” status. A brand-new federal judge, for example, is an “active judge,” as

opposed to a “senior judge” or a “retired judge.”

      I would hold that the agency’s adverse credibility finding is not based on

substantial evidence, grant the petition, and remand to the agency to consider

whether Singh met the one-year filing requirement for asylum, as well as to

determine whether he otherwise meets the requirements for asylum and

withholding of removal.3 I therefore respectfully dissent.




      3
       I concur in the denial of the petition with regard to the Convention Against
Torture claim.

                                          4
