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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit
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Case Name:
KATARIA V INS
Case Number: Date Filed:
99-70796 11/21/00
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PANKAJ KARAN SINGH KATARIA,
Petitioner, No. 99-70796
v. INS No.
A76-847-225
IMMIGRATION AND NATURALIZATION
SERVICE, OPINION
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals
Argued and Submitted
October 4, 2000--San Francisco, California
Filed November 21, 2000
Before: Dorothy W. Nelson, David R. Thompson, and Stephen S.
Trott, Circuit Judges.
Opinion by Judge Thompson
_________________________________________________________________
COUNSEL
Deborah L. Smith, Simmons, Ungar, Helbush, Steinberg & Bright,
San Francisco, California, for the petitioner.
Cindy S. Ferrier, United States Department of Justice, Office of
Immigration Litigation, Civil Division, Washington, D.C.,
for the respondent.
_________________________________________________________________
OPINION
THOMPSON, Circuit Judge:
Pankaj Karan Singh Kataria, a native and citizen of India,
petitions for review of an order of the Board of Immigration
15012
Appeals ("BIA") dismissing his appeal of an immigration
judge's ("IJ") denial of his application for asylum and with-
holding of removal. Kataria alleged past persecution and a
well-founded fear of future persecution on account of his
membership in the All India Sikh Student Federation, a group
seeking the establishment of the independent Sikh state of
Khalistan. We have jurisdiction pursuant to 8 U.S.C.
S 1252(b)(1). We conclude that the BIA erred by denying
Kataria's application on the ground that he failed to provide
documentary evidence to corroborate his testimony. Accord-
ingly, we grant the petition for review.
I.
Kataria is a 36-year-old native and citizen of India who
entered the United States on July 18, 1997, with a non-
immigrant business visitor's visa. On March 23, 1998, he
signed and swore to an application for asylum and withhold-
ing of removal alleging persecution on account of race, reli-
gion, nationality, membership in a social group and political
opinion. By issuance of a notice to appear on April 6, 1998,
the Immigration and Naturalization Service charged Kataria
with removability under 8 U.S.C. S 1227(a)(1)(B) for over-
staying his visa.1
At his asylum hearing, Kataria testified that he is a Sikh
and that he was raised in the Punjab.2 In 1994, he joined the
All India Sikh Student Federation ("AISSF"), a group seeking
the establishment of the independent Sikh state of Khalistan
in what is now the state of Punjab. According to his testi-
mony, Kataria served as treasurer for the AISSF and his
_________________________________________________________________
1 Kataria's petition is governed by the permanent provisions of Illegal
Immigration Reform and Immigrant Responsibility Act because immigra-
tion proceedings were initiated after April 1, 1997. See Kalaw v. INS, 133
F.3d 1147, 1149-50 (9th Cir. 1997).
2 Kataria proceeded pro se before the IJ. He was represented by counsel
before the BIA and is represented by counsel in this petition for review.
15013
duties included procuring contributions to send poor children
to school, arranging conferences, posting AISSF posters that
advocated boycotting elections, and assisting girls from
AISSF families to marry into good families. Kataria also
stated that he used his personal wealth as the owner of a shop-
ping complex to establish and maintain a sewing school with
the purpose of giving widows and orphan girls a practical
skill.
Kataria testified that the police were angry with him for
raising money to benefit the families of Sikh extremists who
had been killed by the police, and that the police warned him
to cease his activities. In June 1995, Kataria was asked to
report to the police station after returning home from a com-
memoration for those killed in the Indian police attack on the
Sikh Golden Temple many years earlier. At the police station,
Kataria was berated, slapped, and accused of helping extrem-
ists. He was detained for three to four hours. The police
warned Kataria to stop working for the AISSF.
In August 1995, Indian police officers arrested Kataria a
second time while he was attending the wedding of the sister
of a murdered member of the AISSF. The expenses of the
wedding were paid for by the AISSF and Kataria. According
to his testimony, Kataria was arrested because the police had
previously warned him not to associate with extremists and
because the police believed that he, as treasurer of the AISSF,
had information regarding how the bride and the bride's fam-
ily had been able to afford such an elaborate and expensive
wedding. Following his arrest, Kataria was tortured over the
course of three days with beatings and electric shock. He was
released after his father paid a bribe.
Fearing that the police would re-arrest him, Kataria then
went into hiding. He changed his identity by cutting his hair
and shaving off his beard. Ultimately, frightened of "elimina-
tion," Kataria obtained a visitor's visa to participate in a Pun-
15014
jabi conference to be held in Milwaukee, Wisconsin. He left
India in July 1997, and came to the United States.
In response to questions from the IJ about his commitment
to the Sikh religion, Kataria testified that he currently wears
only one of the five symbols of Sikh faith -- a special under-
garment known as a "kachch."3 Kataria stated that the "kara"
he had been wearing had broken nearly two months before the
hearing. Kataria did not explain why he does not wear the
remaining three Sikh symbols, although he testified that he
cut his hair, shaved his beard, and stopped wearing a comb in
India between December 1995 and January 1996 in an effort
to change his identity following his second arrest by the police.4
In response to questions from the IJ about why the Sikh
name "Singh" appeared on his asylum application, but not on
his passport or visa, Kataria explained that he did not use the
name "Singh" on his passport or visa "because people are
afraid that they won't be issuing me a passport."
In response to questions from the IJ about his membership
in the AISSF, Kataria conceded that he had no evidence of his
affiliation with the AISSF, but stated that he could produce a
receipt of his membership "if it's available. " He added that he
did not have a receipt of his membership because he was not
able to carry documents with him when he left India.
Finally, in response to questions about why his asylum
application stated that he resided in New Delhi from birth
until he left India in July, 1997, when he had testified at the
hearing that he had lived in the Punjab his entire life, Kataria
explained that the application was typed for him and that "I
_________________________________________________________________
3 The five symbols consist of:"kes" (long hair), "kangha" (comb),
"kachch" (sacred underwear), "kara" (steel bracelet), and a "kirpan" (cere-
monial knife). See Cheema v. Thompson, 67 F.3d 883, 884 (9th Cir. 1995).
4 Kataria stated that he is unable to wear a turban because he was not
baptized in his faith.
15015
just signed the application."5 Kataria further explained that he
was raised in the village of Lallai Kalan in the Punjab.6 He
attended school in Lallai Kalan until the tenth grade. Then, in
order to pursue his education, he attended high school in
neighboring Faridabad before returning to attend Punjab Uni-
versity in Chandigarh. Upon receiving his bachelor's degree
from Punjab University, Kataria returned to Lallai Kalan
where he managed the family's shopping complex located
near his village. Kataria testified that the New Delhi address
was listed on his asylum application because he received his
visa in New Delhi and this was his last address before leaving
India.
At the conclusion of Kataria's testimony, the IJ offered
Kataria a continuance to give him an opportunity to obtain
documentary support of his asylum claim. The IJ stated that
he was concerned about mistakes in Kataria's application, and
suggested that Kataria provide evidence pertaining to his
addresses, residences and employment while in India, his
association with the Sikh religion and his village in the Pun-
jab, and the alleged arrests, injuries and medical treatment
associated with Kataria's asylum claim.
A continued hearing was held two and a half months later.
At that hearing, Kataria appeared without any additional doc-
umentation. He explained that, although his sister and mother
still resided in India, his sister no longer maintained contact
with his family after her marriage and his mother was too
elderly and uneducated to provide assistance. Kataria also
stated that he knew of no one who could assist him with his
claim.
_________________________________________________________________
5 Under a separate heading entitled "Address Prior to Arrival in the
U.S.," Kataria listed "Sector 8-A Chandigarh, India" which is located in
the Punjab.
6 Kataria listed his native language on the asylum application as Punjabi.
15016
The IJ denied Kataria's application for asylum and with-
holding of removal, but granted him the privilege of voluntary
departure on the condition that he post a $1000 bond and
exhibit a valid Indian passport. Explaining his decision, the IJ
discussed concerns about whether Kataria was in fact a Sikh,
whether he actually lived in the Punjab, whether he was genu-
inely active in the AISSF, and whether he was treated for
injuries sustained during his detention by police. The IJ then
stated:
The Government in this particular case is correct.
This case falls generally within the decisions of the
Board of Immigration Appeals in In re S-M-J-, Int.
Dec. 3303 (BIA 1997); In re M-D-, Int. Dec. 3339
(BIA 1998); and Int. Dec. In re B-B- (BIA 1998). As
the Board of Immigration Appeals has indicated,
where corroborating evidence could reasonably be
expected to be obtained, then the alien has the obli-
gation and affirmative duty to corroborate his claim
to the degree that he can or otherwise reasonably
explain his failure to do so. [Kataria] has not done
that. Since his testimony standing alone is not con-
sidered sufficiently credible to justify the relief
which he seeks, the Court will find that he has[not]
sustained his burden of proof both as to asylum and
withholding of deportation as to India.
The BIA dismissed Kataria's appeal of the IJ's decision for
the reasons stated therein and adopted the IJ's findings and con-
clusion.7 The BIA added:
[T]he regulations, our precedent, and precedent from
the Ninth Circuit Court of Appeals provide that a
_________________________________________________________________
7 The BIA denied Kataria's request to introduce additional documenta-
tion into evidence on the ground that "[t]he Board is an appellate body
whose function is to review, not create a record. " Kataria does not appeal
this ruling.
15017
respondent's testimony, if credible, "may be suffi-
cient to sustain the burden of proof without corrobo-
ration" (emphasis added). 8 C.F.R. S 208.13(a). See
also Matter of Mogharrabi, supra, at 445 (observing
that the testimony of an applicant for asylum, stand-
ing alone, may suffice to establish his persecution
claim "where the testimony is believable, consistent,
and sufficiently detailed to provide a plausible and
coherent account of the basis for his fear"); Campos-
Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999). We
have also held, however, that where there are dis-
crepancies in the record which are not sufficient to
warrant an adverse credibility finding but that never-
theless raise questions about the respondent's claim,
the respondent should resolve these problems by
providing corroborating documents. Matter of Y-B-,
supra.
In this case, the respondent's evidence and testi-
mony raise questions about whether the respondent
is a Sikh, whether he lived in the Punjab, and
whether he was active in the AISSF . . . . The
respondent did not resolve any of these problems in
his claim with corroborating documents.
The BIA concluded that because Kataria failed to provide
any corroboration for his testimony, he failed to meet his bur-
den of establishing eligibility for asylum or entitlement to
withholding of removal. The BIA dismissed Kataria's appeal
and this petition for review followed.
II.
Where, as here, the BIA adopts the IJ's decision while
adding its own reasons, we review both decisions. See Chand
v. INS, 222 F.3d 1066, 1072 n.7 (9th Cir. 2000). We review
a determination that an applicant has not established eligibil-
ity for asylum under the substantial evidence standard of
15018
review. See Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998).
To prevail, the applicant must show that the evidence not only
supports, but compels the conclusion that the asylum decision
was incorrect. See Cordon-Garcia v. INS, 204 F.3d 985, 990
(9th Cir. 2000).
III.
[1] To establish eligibility for asylum, an applicant must
prove that he or she is a "refugee." See Cordon-Garcia, 204
F.3d at 990. A refugee is defined as an alien who is unable or
unwilling to return to his or her country "because of persecu-
tion or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion." 8 U.S.C. S 1101(a)(42)(A) (1994). "Per-
secution" is defined as "the infliction of suffering or harm
upon those who differ (in race, religion, or political opinion)
in a way regarded as offensive." Cordon-Garcia, 204 F.3d at
991 (quoting Singh, 134 F.3d at 967).
To establish a well-founded fear of persecution, an appli-
cant must demonstrate both a subjective and an objective fear
of persecution. See Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th
Cir. 1997). An applicant can satisfy the subjective component
by credibly testifying that he genuinely fears persecution. See
id. An applicant can satisfy the objective component in two
ways. See Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000).
The first way is to prove persecution in the past, giving rise
to a rebuttable presumption of a well-founded fear of future
persecution. See 8 C.F.R. S 208.13(b)(1)(i) (2000). The sec-
ond way is to "show a good reason to fear future persecution
by adducing credible, direct, and specific evidence in the
record of facts that would support a reasonable fear of perse-
cution." Ladha, 215 F.3d at 897 (quoting Duarte de Guinac
v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999)). The objective
requirement can be met "either through the production of spe-
cific documentary evidence or by credible and persuasive tes-
timony." Id.
15019
[2] An alien is entitled to withholding of removal "if the
evidence demonstrates a clear probability that the applicant
would be persecuted were he to be deported to his home
country." Duarte de Guinac, 179 F.3d at 1159. "In order to
demonstrate a clear probability of persecution, a petitioner
must prove that `it is more likely than not' that he would be
persecuted on account of a statutorily-protected ground."
Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000). An alien
seeking withholding of removal to any country must show
that his life or freedom would be threatened in that country on
account of one of the enumerated grounds. See 8 U.S.C.
S 1231(b)(3) (Supp. II 1996).
IV.
[3] It is well established in this circuit that the BIA may not
require independent corroborative evidence from an asylum
applicant who testifies credibly in support of his application.
See Ladha, 215 F.3d at 901 (disapproving the corroboration
requirement discussed in Matter of S-M-J-, Interim Decision
3303 (BIA 1997) (en banc)); see also Abovian v. INS, No. 98-
70934, 2000 WL 1509971, at *4 (9th Cir. Oct. 12, 2000) (stat-
ing that corroborative evidence is not required from an asy-
lum applicant whose testimony is unrefuted). It is also well
settled that we must accept an applicant's testimony as true in
the absence of an explicit adverse credibility finding. See
Navas, 217 F.3d at 652; Ladha, 215 F.3d at 901; Hartooni v.
INS, 21 F.3d 336, 342 (9th Cir. 1994).
[4] In the present case, the BIA did not make an explicit
adverse credibility finding. See de Leon-Barrios v. INS, 116
F.3d 391, 394 (9th Cir. 1997) (stating that while an adverse
credibility finding does not require the recitation of unique or
particular words, it must be explicit); see also Shoafera v.
INS, No. 98-70565, 2000 WL 1264527, at *3 n.3 (9th Cir.
Sept. 7, 2000) ("[T]he law of this circuit does not permit
implicit adverse credibility determinations."). Rather, the BIA
determined that Kataria, the "respondent" in the BIA proceed-
15020
ings, failed to meet his burden of establishing his eligibility
for asylum because "the respondent's evidence and testimony
raise questions about whether the respondent is a Sikh,
whether he lived in the Punjab, and whether he was active in
the AISSF" and Kataria "did not resolve any of these prob-
lems in his claim with corroborating documents." 8 Compare
Maldonado-Cruz v. INS, 883 F.2d 788, 792 n.7 (9th Cir.
1989) ("[a]lthough the IJ expressed some concern about Mal-
donado's credibility," the presumption of credibility was
appropriate because "there [was] no clear indication that the
IJ disbelieved the basic facts upon which we make our legal
determination now.").
[5] In the absence of an explicit adverse credibility finding,
we must assume that Kataria's factual contentions are true.
See Navas, 217 F.3d at 652 ("Where the BIA does not make
an explicit adverse credibility finding, we must assume that
the applicant's factual contentions are true."). Because
Kataria's testimony is deemed to be credible, the BIA erred
by requiring him to produce corroborating evidence. See
Ladha, 215 F.3d at 901.
Our decision in Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000)
is not to the contrary. In Sidhu, the applicant was a native and
citizen of India who claimed persecution by Sikh separatists
and the government. The asylum claim was based primarily
on an incident that occurred on the applicant's family farm in
which the applicant and his father were forced to provide aid
to Sikh militants. See id. at 1087. The BIA found that the
applicant was not credible because the applicant failed to
offer a credible explanation for why he did not present the tes-
timony of his father (who was present in the United States at
the time of the asylum hearing) at the asylum hearing. See id.
at 1088. We denied the petition for review, holding that
_________________________________________________________________
8 The BIA also stated: "The Immigration Judge did not specifically find
[Kataria's] testimony to be incredible, and the cases cited by [Kataria]
regarding credibility are therefore inapplicable."
15021
"where the IJ has reason to question the applicant's credibil-
ity, and the applicant fails to produce non-duplicative, mate-
rial, easily available corroborating evidence and provides no
credible explanation for such failure, an adverse credibility
finding will withstand appellate review." Id. at 1092; see also
Mejia-Paiz v. INS, 111 F.3d 720, 724 (9th Cir. 1997) (affirm-
ing IJ's adverse credibility finding based on alien's failure to
produce readily-accessible, material corroborating evidence).
Here, unlike in Sidhu, the BIA did not make an adverse
credibility finding. Instead, the BIA merely noted questions
about Kataria's claim and concluded that Kataria failed to
meet his burden of establishing asylum eligibility. We made
this distinction in Sidhu: "As our recent opinion in Ladha v.
INS, 215 F.3d 889 (9th Cir. 2000), makes clear, Ladha's
holding--that corroboration of credible testimony is
unnecessary--has no bearing on the question of whether fail-
ure to corroborate can justify an adverse credibility determi-
nation." Sidhu, 220 F.3d at 1090 n.2.
V.
[6] Treating Kataria's testimony as credible and applying
the governing law of this circuit, we conclude that the evi-
dence compels the conclusion that Kataria has established
past persecution on account of his political opinion.9 See
Navas, 217 F.3d at 655-56 ("In order to establish eligibility
for asylum on the basis of past persecution, an applicant must
show: (1) an incident, or incidents, that rise to the level of per-
secution; (2) that is `on account of' [political opinion]; and (3)
is committed by the government . . .") (footnote omitted).
Kataria testified that he was arrested on two occasions by
Indian police, detained for three days following the second
_________________________________________________________________
9 Although Kataria originally alleged persecution on account of race,
religion, nationality, membership in a social group and political opinion,
his petition to this court is based solely on persecution on account of polit-
ical opinion.
15022
arrest, and beaten and subjected to electric shock torture by
members of the Indian police force. Kataria also testified that
the police did these things to him because they knew he was
a member of the AISSF and they wanted him to cease his
AISSF-related activities.
[7] Because Kataria established past persecution on account
of his political opinion, he is entitled to the presumption of a
well-founded fear of future persecution. See 8 C.F.R.
S 208.13(b)(1)(i) (2000). The INS bears the burden of rebut-
ting this presumption. One way to rebut the presumption is to
produce evidence demonstrating that country conditions have
changed to the extent that the presumption of future persecu-
tion is unwarranted. See id.
[8] Although evidence of the country conditions in India
was presented, that evidence did not rebut the presumption.
The 1996 country conditions profile of India provides that
"[f]rom the early 1980's until late 1993 or early 1994, there
was considerable violence in the state of Punjab between Sikh
militants on the one side and the law enforcement authorities
of the Indian Government and Punjab state on the other. The
countermeasures taken by the law enforcement authorities
resulted in hundreds of additional deaths. Several thousand
people, including Sikh militants and uninvolved persons from
all religious groups as well as government officials, died dur-
ing the extended period of confrontation in the 1980's and
early 1990's." Although the profile states that the number of
arrests/killings has declined significantly since late 1993 -
early 1994, the profile also states that the Indian Human
Rights Commission found that "[d]espite this improvement,
the authorities continued to commit extrajudicial killings in
1994." The profile also describes the level of violence in the
Punjab as only "lower."
[9] Because the record clearly shows the evidence of coun-
try conditions is not sufficient to rebut the presumption,
remand for a further hearing would not be appropriate. See
15023
Chand v. INS, 222 F.3d 1066, 1078 (9th Cir. 2000). Instead,
we remand for the Attorney General to exercise her discretion
and determine whether to grant asylum. See Duarte de Guinac
v. INS, 179 F.3d 1156, 1164 (9th Cir. 1999).
VI.
With regard to Kataria's claim that he is entitled to with-
holding of removal, 8 C.F.R. S 208.16(b)(2) (2000) provides:
If the applicant is determined to have suffered per-
secution in the past such that his or her life or free-
dom was threatened in the proposed country of
removal on account of race, religion, nationality,
membership in a particular social group, or political
opinion, it shall be presumed that his or her life or
freedom would be threatened on return to that coun-
try unless a preponderance of the evidence estab-
lishes that conditions in the country have changed to
such an extent that it is no longer more likely than
not that the applicant would be so persecuted there.
8 C.F.R. S 208.16(b)(2) (2000); Navas, 217 F.3d at 657 ("A
showing of past persecution gives rise to a presumption that
the applicant has shown a clear probability of future persecu-
tion so as to entitle him to withholding of deportation.").
[10] Kataria presented evidence, which we must treat as
credible, that he suffered past persecution to the extent that
his freedom was threatened on account of his political opin-
ion. Indeed, he was arrested on two occasions. On the occa-
sion of his second arrest, he was held in custody by the Indian
police for three days, during which he was beaten and tortured
with electric shock. Having established this past persecution,
Kateria was entitled to the presumption that his freedom
would be threatened if he were removed and returned to India.
The country conditions profile presented by the INS did not
rebut this presumption. Accordingly, Kataria is entitled to
15024
have his removal withheld. See 8 U.S.C.S 1231(b)(3)(A)
("Attorney General may not remove" any alien if that alien's
life or freedom would be threatened); Navas, 217 F.3d at 657;
Vallecillo-Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir.
1996).
VII.
In sum, Kataria is eligible for asylum. We remand that por-
tion of his application to the Attorney General to exercise her
discretion in granting or denying asylum. With regard to
Kataria's application for withholding of removal, he has
established his entitlement to that relief and it shall be
granted.
PETITION FOR REVIEW GRANTED; APPLICATION FOR WITHHOLDING OF REMOVAL GRANTED;
APPLICATION FOR ASYLUM REMANDED for the exercise of
the Attorney General's discretion.
15025
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