                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2006

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4079




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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                __________

                   No. 04-4079
                   __________

                 DALIP SINGH,
                                   Petitioner,

                        vs.

ATTORNEY GENERAL OF THE UNITED STATES,
                         Respondent
             __________

       On Petition for Review of an Order of
         the Board of Immigration Appeals
             U.S. Department of Justice
      Executive Office for Immigration Review
              (BIA No. A76 123 544)
                    __________

             Argued November 8, 2005
                  ___________

Before: ROTH, FUENTES, and GARTH, Circuit Judges

         (Opinion Filed: January 26, 2006)




                         1
Maris J. Liss, Esq. [Argued]
George P. Mann & Associates, P.C.
33505 W. Fourteen Mile Road, Suite 20
Farmington Hills, Michigan 48331
               Counsel for Petitioner

Peter D. Keisler, Esq.
Linda S. Wernery, Esq.
Hope E. Sanders , Esq.
Sarah Maloney, Esq. [Argued]
Office of Immigration Litigation
United States Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
              Counsel for Respondent

                                         __________

                               OPINION OF THE COURT


Garth, Circuit Judge:

       Dalip Singh petitions for review of a decision of the Board of Immigration

Appeals (“BIA” or “the Board”) affirming the denial by an Immigration Judge (“IJ”) of

his application for asylum and withholding of removal. We will grant the Petition.

                                              I.

       In the affidavit submitted by Singh with his Form I-589, and in his testimony

before the IJ, Singh claimed the following:

       He is a citizen of India, a native of that country’s Punjab state, a farmer and a Sikh.

Before coming to the United States, he was for many years involved in Akali Dal (the

Sikh political party in Punjab), and the struggle for an independent Sikh state, Khalistan.

                                              -2-
       Since April 1989 Singh has been an active member of the splinter group Akali Dal

(Mann), which is apparently a faction of Akali Dal that broke away from a more moderate

faction within that party. Singh’s main responsibility as an Akali Dal (Mann) member

has been “to spread the policies of . . . Akali Dal (Mann) in different villages and make

Sikhs aware of the injustices inflicted upon Sikhs and finally to motivate them to join

Akali Dal (Mann) to keep the struggle going.” 1

       Singh was arrested and abused by police on three occasions due to his work with

Akali Dal (Mann). On Indian Independence Day (August 15) in 1995, Singh was driving

other Sikhs from nearby villages to a protest when police stopped him. When Singh

questioned the police about their basis for preventing him from attending a peaceful

gathering, they began beating him and took him to the police station. There they

reprimanded him for “instigating” other villagers, and continued to beat him. With the

help of his parents and party members he was released after two days’ detention.

       In April 1998, Singh organized a meeting of Akali Dal (Mann) leaders at which

the party planned to announce publicly that it “would not settle for anything less than [a]

separate Sikh State[,] Khalistan.” Police raided the meeting, arrested Singh and Jathedar

Amarjit Singh (“the Jathedar”), and took them to the police station.2 During the night,


       1
        Singh also served as propaganda secretary for Rajinder Kaur Bulara – an Akali
Dal (Mann) member whose husband was killed by police due to his political activity – in
the December 1989 Parliamentary elections.
       2
        In his oral testimony, Singh stated that the police used tear gas, and opened fire,
on the crowd during the course of this arrest, but he did not include this information in his

                                             -3-
drunk policemen came to the room where Singh and the Jathedar were being held and

beat them with canes. Over the next few days, the police hung the Jathedar upside down

and hit him on the soles of his feet, and “desecrated” Singh’s religion by dragging him by

his hair (which, as a Sikh, he wore long), and wondering aloud why his Guru was not

coming to his rescue. After four days Singh’s family and the leader of his village secured

Singh’s release. As he was released, the police told Singh he would face serious

consequences unless he stopped working with Akali Dal (Mann) and “motivating” Sikhs.

       The Jathedar was not so lucky. He passed away as a result of the injuries he

sustained while being abused at the police station. On May 6, 1998, Akali Dal (Mann)

organized a large gathering in the Jathedar’s memory. At the gathering, Singh told those

assembled how the police had tortured the Jathedar in front of him.

       That evening, police raided Singh’s home while he was eating dinner. They

threatened that Singh would now “face the same treatment, which [he] described about”

the Jathedar. His wife shouted to villagers who had gathered outside his house, asking for

help, but one of the policemen pulled out a revolver and said he would shoot anyone who

tried to come to Singh’s defense. The police then beat Singh in front of his wife and the

assembled villagers, and took him to the Ludhiana Police Station, where he was forced to

remove his clothes and the symbols of his faith that he was wearing.

       At the station, the police beat Singh on his back and feet with rods, pulled his legs



affidavit.

                                             -4-
apart so that he could not walk properly, and removed the fingernails on his left hand with

plyers, causing him to bleed profusely.3 Throughout the abuse, they asked him how he

felt now about talking publicly about the torture of the Jathedar, and told him that he

would “be eliminated” due to his work opposing the government and his failure to leave

Akali Dal (Mann) as he’d been instructed to do. After five days, his family and the leader

of his village were able to secure Singh’s release by paying Inspector Brar a 50,000 rupee

bribe. They took Singh to a doctor, where he was treated for two days.

       After he was released, Singh resumed his activities mobilizing Sikhs, enrolling

them in Akali Dal (Mann), and organizing gatherings in his area. He also began to work

with Kuldip Singh, a former judge of the Supreme Court of India, who was compiling a

“People’s Commission Report” that documented abductions of – and other abuses against

– Sikhs.

       In July 1998, police again raided Singh’s home and, when they learned he was not

there, told his wife that the time had come for someone else to document her husband’s

abduction. The police then began to raid Singh’s house and the houses of his relatives

regularly. Singh tried to enlist his village leader to broker peace with the police, but the

leader refused, telling Singh that, based on what he had personally heard from the police,



       3
         On direct examination, Singh stated that his fingernails were removed during his
detention in April 1998, but on cross-examination and in his affidavit, he stated that his
fingernails were removed during his detention in May 1998. A note from Singh’s doctor
that is part of the record appears to indicate that the fingernail incident indeed occurred
during the May detention.

                                             -5-
if Singh was caught by them again, he would not live to tell the tale. Akali Dal (Mann)

members and members of Singh’s family advised him at that point to leave India in order

to save his life.

       With the help of an agent, Singh left India on Novemer 10, 1998 and traveled to

Singapore and then Mexico. He entered the United States at or near Brownsville, Texas

on November 21, 1998.

       Since Singh has been in the United States, the Punjabi police have arrested another

Jathedar with whom he had worked closely in Akali Dal (Mann). No one has seen or

heard from that Jathedar since.

       In April 1999 Singh submitted an application for asylum based on the persecution

he claims he has experienced – and a fear of future persecution – on account of his

political opinion, religion, and membership in a particular social group. The application

was referred to the Immigration Court for its final adjudication. The former Immigration

and Naturalization Service 4 served Singh with a Notice to Appear on May 11, 1999,

charging him with removability under 8 U.S.C. §1182(a)(6)(A)(I). Singh conceded

removability and renewed his asylum application.




       4
         As of March 2003, “the INS ceased to exist as an independent agency within the
United States Department of Justice [‘DOJ’] and its functions were transferred to the
newly formed United States Department of Homeland Security.” Leia v. Ashcroft, 393 F.
3d 427, 430 n.4 (3d Cir. 2005). The BIA remains within the DOJ. Knapik v. Ashcroft,
384 F. 3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L. No.
107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002)).

                                            -6-
       Singh submitted a significant amount of documentary evidence – some with his

application, and more at his October 8, 1999 hearing. This evidence included (1) a letter

from the President of Akali Dal (Mann) confirming Singh’s membership in the party and

discussing abuses Sikhs have suffered in Punjab, (2) affidavits from his father and the

leader of his village attesting to the abuse Singh suffered, (3) a note from Singh’s doctor

certifying that he had treated Singh from May 10 until May 12, 1998, (4) a letter signed

by several members of the U.S. House of Representatives calling upon the Chief Minister

of Punjab to initiate an independent inquiry into atrocities committed against Sikhs in his

state, and (5) copies of several articles from various Indian newspapers about the

mistreatment of Sikhs in Punjab.

                                              II.

       The IJ accepted Singh’s testimony as credible, but denied Singh’s application. In a

December 27, 1999 opinion the IJ explained the grounds for this denial: (1) he doubted

that Singh’s supporting documents were authentic, (2) he found Singh’s testimony

“vague” and “general,” (3) Singh’s testimony, in ways unspecified, was not “identical” to

the information to which his father testified in his affidavit, (4) it appeared to him that

Singh suffered the abuse he allegedly suffered not because of his political opinion, but

because he was a “driver and owner of a tractor,” and (5) “the descriptions of his injuries

when compared with his treatment also appears” – again, in ways unspecified – “to be

quite implausible.” Singh appealed.



                                              -7-
       The BIA dismissed Singh’s appeal on March 7, 2003. Though the BIA agreed

with the IJ that Singh’s application should be denied, it did not explicitly adopt the IJ’s

reasoning, or defer to his findings; rather, it apparently performed an independent

assessment of the record and set forth its own basis for denial.

       The BIA began and ended its opinion by stating generally that Singh had “not

presented sufficient evidence” to support his claim. It devoted the greater part of its

opinion, however, to discussing not the insufficiency of evidence in Singh’s application

packet but rather the indicia of Singh’s credibility.

       The Board observed that Singh’s testimony was internally inconsistent, or

inconsistent with his asylum application and corroborating documents, on several points.

It gave as examples the facts that (1) though Singh testified on direct examination that his

fingernails were removed during his detention in April 1998, he stated on cross-

examination that his fingernails were removed during his May 1998 detention (see

footnote 3), and (2) while he testified at his hearing that his periods of detention in April

1998 and May 1998 lasted for four and five days respectively, the village leader’s

affidavit stated that these periods of detention lasted three and four days respectively.

       The BIA noted that “[w]hile these discrepancies, on their own, might not be

sufficient to support a finding that all of the respondent’s testimony is incredible, they do

raise doubts regarding the truth of his story. And the respondent’s remaining evidence is

not sufficient to overcome these doubts” (emphasis added).

       The BIA then went on to note three other deficiencies in Singh’s application: it

                                              -8-
noted that (1) Singh’s testimony was “vague and lacking in detail,” (2) Singh “had

difficulty answering basic questions about elections and his party’s position in the

government even though he claimed to be politically active,” and (3) Singh’s

“documentary evidence does little to bolster his claim,” citing the previously noted

inconsistency between the village leader’s affidavit and Singh’s testimony, and the fact

that “the letter from the doctor also contains dates that are not entirely consistent with

[Singh’s] account of events.”

                                             III.

       We have jurisdiction to review final orders of removal under 8 U.S.C. §1252(a)(1).

Because the BIA did not expressly adopt part or all of the IJ’s opinion, or announce that it

was deferring to the IJ’s findings, the final order we review is the decision of the BIA

alone. See, e.g., Voci v. Gonzales, 409 F. 3d 607, 612-613 (3d Cir. 2005); Kayembe v.

Ashcroft, 334 F. 3d 231, 234 (3d Cir. 2003).

       An asylum applicant must demonstrate either past persecution or a well-founded

fear of future persecution, that occurs on the basis of one or more characteristics

enumerated in the immigration statute, 8 U.S.C. §§1158(b)(1) and 1101(a)(42)(A), and

that is “committed by the government or forces the government is either unable or

unwilling to control.” Abdulrahman v. Ashcroft, 330 F. 3d 587, 592 (3d Cir. 2003).

       Aliens have the burden of supporting their asylum claims. Vente v. Gonzales, 415

F. 3d 296, 300 (3d Cir. 2005). Under some circumstances, credible testimony alone will

fulfill this burden. 8 C.F.R. §208.13(a); Dia v. Ashcroft, 353 F. 3d 228, 247 (3d Cir.

                                              -9-
2003). Under other circumstances, the agency may require documentary evidence in

addition to credible testimony. Abdulai v. Ashcroft, 239 F. 3d 542, 554 (3d Cir. 2001).

An agency finding that an applicant is not credible, or an “adverse credibility

determination,” is fatal to the applicant’s claim. Dia, 353 F. 3d at 247.

       Whether an asylum applicant has demonstrated past persecution or a well-founded

fear of future persecution is a factual determination reviewed under the substantial

evidence standard. We must affirm the agency’s finding unless “any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §1252(b)(4)(B).

       An adverse credibility determination is also reviewed for substantial evidence. See

Gao v. Ashcroft, 299 F. 3d 266, 272 (3d Cir. 2004). Before upholding it, we must “ensure

that it was ‘appropriately based on inconsistent statements, contradictory evidences, and

inherently improbable testimony . . . in view of the background evidence on country

conditions.’” Dia, 353 F. 3d at 249 (citation omitted).

                                             IV.

                                              A.

       Generally, when the BIA denies an asylum application, it does so because it makes

one of the following findings: (1) the abuse allegedly suffered or feared does not rise to

the level of “persecution” within the meaning of the immigration statute, see, e.g.,

Al-Fara v. Gonzales, 404 F. 3d 733 (3d Cir. 2005); (2) the abuse the applicant suffered or

fears was or will not be based on his actual or perceived race, religion, nationality,

political opinion or membership in a particular social group, see, e.g., I.N.S. v.

                                             -10-
Elias-Zacarias, 502 U.S. 478 (1992); (3) the abusers are not state actors or parties the

state was unable or unwilling to control, see, e.g., Wu v. Ashcroft, 393 F. 3d 418 (3d Cir.

2005); (4) the applicant has not suffered past persecution, and it is unreasonable for him

to fear future persecution, see, e.g., Lusingo v. Gonzales, 420 F. 3d 193 (3d Cir. 2005);

(5) the applicant has suffered past persecution, but circumstances in his home country

have changed such that it is no longer reasonable to fear that he would be persecuted if

returned to that country, see, e.g., Berishaj v. Ashcroft, 378 F. 3d 314 (3d Cir. 2004); (6)

the applicant is credible, but it is reasonable to require some kind of documentary

corroboration of his story, and he has failed to provide it, Abdulai v. Ashcroft, 239 F. 3d

542 (3d Cir. 2001); or (7) the applicant is not credible, see, e.g., Xie v. Ashcroft, 359 F. 3d

239 (3d Cir. 2004).

       Here, the BIA denied Singh’s application, but did not base its denial explicitly on

any of these grounds. It gave no indication whatsoever that its denial was based on

grounds (1) through (5) (relating to persecution) above. It gave only oblique indications

that its denial was based on grounds (6) and (7), i.e., insufficiency of corroborating

evidence and lack of credibility.

                                              B.

       As to the “insufficiency of corroborating evidence,” the BIA may, of course,

require that an asylum applicant – even a credible one – supply corroborating evidence in

order to meet his burden of proof. Abdulai, 239 F. 3d at 550-554. When it does so,

however, it must (1) identify the facts for which it is reasonable to expect corroboration,

                                             -11-
(2) inquire as to whether the applicant had provided information corroborating those

facts, and, if not, (3) analyze whether the applicant had adequately explained his failure to

do so. Id. at 554 (3d Cir. 2001).

       The BIA did not engage in that 3-part inquiry here. Its only comment about the

documents Singh submitted (i.e., that the information some of them included was

inconsistent with some of the information to which Singh testified) went to Singh’s

credibility rather than to the sufficiency of his proof. Thus, even if the BIA had made it

perfectly clear (which it did not) that “insufficient corroboration” was the basis on which

it denied Singh’s application, the BIA did not satisfy our requirement for an explanation

of its decision. Because it failed to furnish that explanation, we are obliged to remand.

See id. at 555. See also Voci, 409 F. 3d at 616-617 (because it was not clear from the

BIA’s opinion whether the BIA believed the applicant had failed to provide adequate

corroboration, and because, even if this had been clear, the BIA did not apply the 3-part

inquiry of Abdulai, the court sent the case back to the BIA with instructions that it

explicitly address the issue on remand).

                                              C.

       As to Singh’s credibility, we find it significant that the Board here did not make an

explicit adverse credibility determination, but rather merely expressed “doubts” about

Singh’s credibility. Mere “doubts” about credibility are an insufficient basis for denial of

an asylum application. If the BIA denies an asylum application solely because it finds the

applicant not credible, it must clearly and explicitly state that it has made an adverse

                                             -12-
credibility determination, and that it bases its denial on that determination.5

       We have several times affirmed the rule that where the BIA makes no explicit

findings about an applicant’s credibility, we must proceed as if the applicant’s testimony

were credible 6 and determine whether the explicitly stated basis for the BIA’s decision is

supported by substantial evidence in the face of the assumed (but not determined)

credibility. See Lusingo, 420 F. 3d at 197 n.5; Li v. Attorney General, 400 F. 3d 157,

163-164 (3d Cir. 2005); Kayembe, 334 F. 3d at 235. In the cases in which we previously

have applied the rule, however, the BIA had said nothing about credibility or had

indicated generally that it found the applicant credible, and decided the case on other

grounds.7 Here, by contrast, the BIA openly questioned Singh’s credibility, and discussed



       5
        If, on the other hand, the BIA has doubts about an applicant’s credibility, but
denies his application not on the basis of those doubts, but on another basis altogether, it
must make clear for the reviewing court what that other basis is.
       6
         We note that Congress codified this rule in the REAL ID Act of 2005. The
relevant provision states that “if no adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable presumption of credibility on appeal.” 8
U.S.C. §1158(b)(1)(B)(iii). Because this provision applies only to asylum applications
filed after May 11, 2005, it cannot apply to Singh’s application.
       7
         See Lusingo, 420 F. 3d at 197 n.5 & 198-199 (BIA made no determination
regarding applicant’s credibility, and denied application because it found applicant’s fear
of future persecution was not objectively reasonable); Li, 400 F. 3d at 161 (BIA criticized
the IJ’s adverse credibility determination noncommittally, but did not make its own
credibility assessment, and denied application because it found the mistreatment the
applicant alleged did not rise to the level of “persecution”); Kayembe, 334 F. 3d at 234-
235 (BIA made no finding regarding applicant’s credibility, and denied application
because it found that the applicant had not proved his Tutsi ethnicity and, that anyway,
Tutsis are not subject to persecution in the applicant’s home country on the basis of their
ethnicity).

                                             -13-
thoroughly as a basis for denying the application only credibility-related grounds.

       Significantly, the government itself proceeded on the assumption that “the BIA did

not make an adverse credibility determination in this case.” Brief at 12 (emphasis

added).8

       Moreover, we have repeatedly held that the basis for a BIA determination must be

apparent from its opinion; we cannot review the BIA’s unexplained conclusion. See, e.g.,

Wang v. Attorney General, 423 F. 3d 260, 270-271 (3d Cir. 2005).

       Finally, it is far from obvious that an adverse credibility determination would have

been warranted here. The date-related inconsistencies identified by the BIA were trivial,

see, e.g., Senathirajah v. I.N.S., 157 F. 3d 210, 221 (3d Cir. 1998) (“Minor

inconsistencies in the record such as discrepancies in dates which reveal nothing about an

asylum applicant's fear for his safety are not an adequate basis for an adverse credibility

finding”), and, at least to some extent, explicable.9 Moreover, we cannot agree that



       8
         The government suggests, confusingly, that the BIA accepted Singh’s testimony
as credible, but denied his claim because the documentary evidence he submitted
conflicted with that testimony. It cites Shardar v. Ashcroft, 382 F. 3d 318 (3d Cir. 2004)
in support of its argument that this is an appropriate conclusion. That case, however, is
inapposite. There, the court denied the applicant’s claim because the abuse he alleged did
not constitute “persecution” within the meaning of the immigration statute, but rather was
legitimate prosecution under the laws of Bangladesh.
       9
         For example, Singh testified that he was arrested on May 6, 1998 and released
“on [the] fifth day.” The village leader’s affidavit states that Singh was arrested on May
6, 1998 and released May 10, 1998 (“custody of Ludhiana – Police for 4 days”). The
difference is explained by whether the first day – May 6, 1998 – is included in the
calculation. So viewed, there is no discrepancy between Singh’s testimony and the
village leader’s affidavit.

                                            -14-
Singh’s description of elections in India and his party’s position was inadequate.10

Finally, the record does not reveal that Singh’s testimony was plagued by the lack of

detail of which the BIA complained.11

                                              D.

       Because we cannot tell what the basis for the BIA’s conclusion was we will

remand the case to the BIA for clarification and, if necessary, further proceedings. See

Voci, 409 F. 3d at 613-614 (remanding for further proceedings because though the BIA

had determined that the applicant was not eligible for asylum, its “opinion [did] not

explain how the BIA reached this result”); Awolesi v. Ashcroft, 341 F. 3d 227, 229 (3d

Cir. 2003) (“we cannot give meaningful review to a decision in which the BIA does not

explain how is came to its conclusion”); Kayembe, 334 F. 3d at 238-239 (“When

       10
          At the portion of the transcript the BIA cited in noting that Singh “had difficulty
answering basic questions about elections and his party’s position in the government,”
Singh’s attorney was asking Singh to explain why small parties do not participate in every
election in India, and the difference between how parties function in India’s
parliamentary democracy and in the United States’ democracy. Singh’s inability to give
more thorough answers than he gave to these relatively sophisticated questions, in our
opinion, does not indicate that he could not answer “basic questions about elections and
his party’s position in the government.”
       11
         Singh’s oral testimony contained significant detail. The affidavit he submitted
with his Form I-589 contained even more detail than his oral testimony, and was, for the
most part, consistent with that testimony. The BIA did not appear to consider (or at least
did not cite) the account of Singh’s experiences contained in the affidavit, as an
immigration regulation suggests it may. See 8 C.F.R. 1208.3(c)(1) (“Information
provided in the [asylum] application may be used . . . to satisfy any burden of proof in . . .
removal proceedings.”). See Mukamusoni v. Ashcroft, 390 F. 3d 110, 121 (1st Cir. 2004)
(holding that, as a matter of law, the BIA erred when it focused only on an asylum
applicant’s oral testimony to the exclusion of his affidavit in evaluating the applicant’s
claim).

                                             -15-
deficiencies in the BIA’s decision make it impossible for us to meaningfully review its

decision, we must vacate that decision and remand so that the BIA can further explain its

reasoning.”).

       For the foregoing reasons, we will GRANT Singh’s Petition for Review.




                                           -16-
