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U.S. Court of Appeals for the Ninth Circuit 
Case Number:	Date Filed:
98-71363	07/20/00




Petitioner,                                           No. 98-71363

v.                                                    INS No.
SERVICE,                                              OPINION

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

Argued and Submitted
May 4, 2000--Pasadena, California

Filed July 20, 2000

Before: James R. Browning, Cynthia Holcomb Hall, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Hall



Hilary A. Han, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner.

Christine A. Bither, U. S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.



HALL, Circuit Judge:

Petitioner Manraj Singh Sidhu is a citizen of India seeking
asylum in the United States. On February 22, 1996, an Immi-
gration Judge ("IJ") held a hearing on the merits of Petition-
er's application and denied his asylum claim on the basis of
an adverse credibility determination. The Immigration Judge
also denied Petitioner's request for voluntary departure. On
November 9, 1998, the Board of Immigration Appeals
("BIA") affirmed the IJ's denial of asylum, but reversed the
IJ's determination that Petitioner is not entitled to voluntary
departure. The BIA affirmed the adverse credibility finding
after conducting a de novo review of the administrative
record. Petitioner filed a timely petition for review by this
Court. The BIA had appellate jurisdiction over the IJ's deci-
sion under 8 C.F.R. S 3.1(b)(2). We have jurisdiction over this
petition pursuant to 8 U.S.C. S 1105a(a)(2), and grant it.


Petitioner is a 26-year-old Indian male who was born and
raised in Chandiagarh, Punjab. Petitioner claims that he is a


member of the Sikh faith, and belongs to a locally prominent,
religious, Sikh family. Petitioner claims that he was perse-
cuted both by Sikh separatists and by the Indian government.
Petitioner's persecution claim mainly stems from an incident
on his family's farm.

According to Petitioner's testimony, in mid-June, 1989, a
group of five men came to the Sidhu home and asked for food
and shelter. The men all wore orange clothes and blue or
orange turbans, carried small ceremonial swords, and wore
long beards. Petitioner's father refused their request for food
and shelter. At that point, one of the men pointed a firearm at
Petitioner's father and demanded assistance, explaining that
the group was engaged in a violent struggle to end the torture
being inflicted upon Sikhs in India. Petitioner protested to the
militants, arguing that they should not be harassing his family.
In response, one of the militants pointed a gun at Petitioner
and urged him to help the militants in their cause.

Petitioner's family then complied with the militants'
demands, providing them with food and shelter. As they were
leaving, the militants stole one of the family's tractors. Peti-
tioner's family could not report the theft to the police immedi-
ately because the phone lines were down, and it was evening.
Shortly thereafter, the militants were involved in a skirmish
with the Indian police. As a result, all the militants either were
killed or fled. The following morning, four police officers
arrived at the Sidhu farm, having traced the tractor to Petition-
er's family.

The police placed Petitioner under arrest on suspicion of
being a member of the militant Sikh group. At the nearby
city's police station, the officers began interrogating Peti-
tioner. During the course of the interrogation, they repeatedly
beat and kicked Petitioner and denied him food. The officers
also employed a "roller treatment" whereby the officers
forced Petitioner to lie down on a bench while they pressed
on a wooden bar that was placed over his legs. This "roller


treatment" was quite painful and rendered Petitioner unable to
walk for days. The police continually tried to prompt Peti-
tioner to admit membership in the militant organization. Peti-
tioner testified that the police were particularly interested in
securing a confession from him so as to embarrass Petition-
er's father, a prominent Sikh political activist. If Petitioner
confessed to being part of a militant Sikh group, his father's
position as a nonviolent, mainstream Sikh activists would be
undermined. After nine or ten days, Petitioner's father paid a
50,000 rupee bribe to the police in order to secure his son's
release. Nevertheless, the incident had caused the police to
open a police file on Petitioner, and the police warned Peti-
tioner's father that any time Petitioner came into the city he
would be arrested. Petitioner testified that he felt that if he
ever came across the police, they would stage a "false
encounter" and use the excuse to kill him.

The following morning, Petitioner fled to New Delhi,
where he resided with his uncle. Petitioner testified that he
lived as a student in New Delhi, maintaining a very con-
strained lifestyle so as to avoid encountering police officers.
About three months after his arrival, Petitioner had the mis-
fortune of witnessing a kidnaping and getting a close look at
the driver of the get-away car. Days later, Petitioner was spot-
ted by one of the kidnapers, and was chased through the town.
In light of his police record, Petitioner felt unable to go to the
police for assistance. Constantly feeling endangered from the
police and the kidnapers, Petitioner obtained a tourist visa to
visit the United States and overstayed that visa. Petitioner's
family also left India within the next few years.

After a hearing, an IJ denied Petitioner's asylum request on
the basis of an adverse credibility finding. The BIA conducted
an independent review of the record and also found Petitioner
not credible.


Where, as here, the BIA conducts an independent review of
the IJ's findings, this Court reviews the BIA's decision and


not that of the IJ. See Perez v. INS, 96 F.3d 390, 392 (9th Cir.
1996). This Court must determine whether substantial evi-
dence supports the BIA's adverse credibility finding. See de
Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997).


Although the IJ based his adverse credibility determination
on a number of factors, the BIA apparently saw only two
valid reasons for viewing Petitioner as not credible. First, the
BIA noted that Petitioner "gave varying answers regarding his
father's date of entry into this country." Second, the BIA
noted that Petitioner "did not have his father testify on his
behalf, and provided an `explanation' for this failure that we
simply do not find believable."

[1] It is clear from the record and the case law that the
BIA's first basis for finding Petitioner not credible does not
constitute substantial evidence. During the INS's cross exami-
nation of Petitioner, the following exchange occurred:

      Q. Where does your father live?

      A. He is -- at present he is in the United States.

      Q. What is his immigration status?

      A. Same as mine.

      Q. When did he come to the United States?

      A. I don't remember the exact date. I think it was
      two or three years back.

      Q. Two or three years ago. Approximately what
      year, sir?

      A. '94 -- 93. I don't have the exact date.


      Q. Approximately when?

Petitioner's counsel then objected, stating that the question
had been asked and answered. The judge overruled the objec-
tion, stating that Petitioner had been "so precise on dates and
years on direct examination it's appropriate to further recall
on cross." Petitioner then answered the question:

      A. '93.

      Q. When in 1993?

      A. September.

Shortly thereafter, INS counsel pointed out to Petitioner that
at his November 14, 1994, asylum interview, he had told his
interviewer that his father was living safely on his farm [in
India] at that time. Upon hearing this account, Petitioner cor-
rected his earlier testimony, stating that his father came to the
United States very shortly after the interview. Petitioner sub-
sequently testified on two separate occasions that his father
had indeed come to the United States after his asylum inter-
view, and that he had earlier been forced to guess incorrectly
that September 1993 was the date of his father's arrival in the
United States. A reading of the record reveals that Petitioner
merely made an erroneous guess when asked about the date
of his father's arrival, that Petitioner had no incentive to lie
about the date, and that Petitioner on several occasions tried
to correct his testimony in a manner consistent with his earlier
statement at his asylum interview. Moreover, other than INS's
desire to catch Petitioner in a lie, it is altogether unclear why
the date of his father's arrival in the United States was in any
way relevant to Petitioner's claim. No one disputes that Peti-
tioner's father was in India at the time of the alleged persecu-

Under Ninth Circuit law, the discrepancy in the testimony
described above is not a sufficient basis for an adverse credi-


bility determination. See Campos-Sanchez v. INS , 164 F.3d
448, 450 (9th Cir. 1999) ("Inconsistencies of less than sub-
stantial importance for which a plausible explanation is
offered cannot form the sole basis for an adverse credibility
finding.") (citation and internal quotation marks omitted);
Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir. 1997)
(reversing an adverse credibility finding based on discrepancy
between an asylum application and testimony where "the
most likely explanation for the change is a desire to tell the
truth and to correct a false statement that reflected no culpable
conduct on his part"); Vilorio-Lopez v. INS , 852 F.2d 1137,
1142 (9th Cir. 1988) ("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.") (citation omitted).

In short, the discrepancy between Petitioner's asylum inter-
view and his testimony was based on his admittedly fuzzy
recollection of that date, and Petitioner immediately clarified
his actual testimony to explain any discrepancy. The fact that
Petitioner had testified with great specificity about dates on
which the alleged persecution took place, but had difficulty
recalling the date of his father's emigration, was not substan-
tial evidence supporting an adverse credibility determination.


The second basis for the BIA's credibility determination
stemmed from the failure of Petitioner's father to appear at
Petitioner's hearing. Petitioner testified on cross-examination
that his father lives with him in Yorba Linda, California. At
that point, the following exchange occurred between Peti-
tioner and INS counsel:

      Q. Sir, do you have any proof that your father's in
      the United States?

      A. Other than himself? I mean do you want to see
      him or -- yes, I do. You can --.


      Q. Do you have it here in Court?

       [Petitioner's counsel objects, and the objection is

      Q. Sir, do you have any proof that your father is in
      the United States?

      A. What type of proof do I need to submit?

      Q. Sir, is that no? Do you have anything in Court

      A. No. Today? No.

        . . .

      Q. Sir, is there -- is there any reason your father
      isn't here in Court today to corroborate your

        . . .

      A. Well, I did not feel that it was very relevant for
      him to come with me today because I do carry
      a very separate asylum application and for him
      to be here today -- I didn't feel it was relevant.

It takes approximately 45 minutes to drive from downtown
Yorba Linda to downtown Los Angeles, where the hearing
before the IJ was held. The IJ, INS attorney, and BIA were
therefore puzzled as to why a critical corroborating witness
was not called by Petitioner to bolster his case. Petitioner's
testimony included allegations suggesting that the police had
arrested him in part as a way to embarrass his father, who was
a politically active Sikh. Petitioner also testified that his father
witnessed many of the events described, and had first-hand
knowledge of much of the persecution. Indeed, Petitioner's


father was the only witness to some events that are at the core
of his asylum application. For example, only Petitioner's
father heard the Indian Police's alleged threats that they
would harass Petitioner after his release from custody.

On appeal, Petitioner submits that he and his lawyer made
a poor strategic decision by declining to bring his father to the
hearing, but argues that because an alien's own testimony
alone can suffice to support an asylum claim, it was improper
for the BIA to discredit his testimony on that basis.1 Petition-
er's argument is based on his reading of the relevant INS reg-
ulations, 8 C.F.R. S 208.13(a), and our case law.

[2] The plain text of the INS's regulations belies Petition-
er's interpretation of them. Under 8 C.F.R. S 208.13, the "bur-
den of proof is on the applicant for asylum to establish that
he or she is a refugee as defined in section 101(a)(42) of the
Act. The testimony of the applicant, if credible , may be suffi-
cient to sustain the burden of proof without corroboration."
(emphasis added). This language plainly indicates that if the
trier of fact either does not believe the applicant or does not
know what to believe, the applicant's failure to corroborate
his testimony can be fatal to his asylum application. Thus, the
regulations unambiguously contemplate cases where an appli-
cant's testimony alone will not satisfy his burden of proof.2
1 If Petitioner's trial counsel actually believed that Petitioner's father
would corroborate Petitioner's testimony, but nevertheless advised Peti-
tioner not to bring his father to the IJ hearing, then trial counsel's perfor-
mance is open to serious question. Because Petitioner does not assert that
his trial counsel's decision was so poor as to render him ineffective, we
do not address the claim here.
2 Petitioner argues that a failure to corroborate testimony can never be
held against an asylum applicant. We reject this argument categorically.
Petitioner had provided no sensible reason why we should establish a rule
that creates a disincentive for asylum applicants to bring forward highly
pertinent information. Corroborating evidence is often scarce in asylum
proceedings, but where it is easily available, no rational legal regime
would discourage applicants from bringing it to the attention of the trier


As we explain below, those cases include instances where an
applicant inexplicably fails to present easily available, mate-
rial, non-duplicative, corroborating evidence to support his
asylum claim.

Crediting Petitioner's testimony, the testimony of his father
would have been highly probative, non-duplicative, corrobo-
rating evidence. And no reading of the INS's regulations or
Ninth Circuit case law supports Petitioner's conclusion that
his failure to bring forward easily available corroborating evi-
dence has no bearing on his asylum application. Mejia-Paiz
v. INS, 111 F.3d 720, 724 (9th Cir. 1997), is the only Ninth
Circuit opinion that squarely confronts a situation in which an
IJ based an adverse credibility finding on an alien's failure to
produce readily accessible, material corroborating evidence.
In that case, the IJ based an adverse credibility finding on the
petitioner's inability to provide documentary evidence that he
was a member of the Jehovah's Witness Church. Under a cap-
tion entitled "The IJ's Credibility Finding," we wrote:

      First, the IJ found that petitioner could have offered
      proof that he was a member of the Jehovah's Wit-
      nesses but did not. The IJ reasoned that establishing
      membership through either a local or foreign church
      would have been a relatively uncomplicated task.
      We agree. In fact, the petitioner himself claimed in
      his application for asylum that many of his problems
      were due to the fact that there was proof of his mem-
of fact. As our recent opinion in Ladha v. INS , _______ F.3d _______, 2000 WL
867980 (9th Cir. June 1, 2000), makes clear, Ladha's holding -- that cor-
roboration of credible testimony is unnecessary -- has no bearing on the
question of whether failure to corroborate can justify an adverse credibility
determination. See id. at *8 n.11 ("We do not address if or when it is
proper to consider the `availability' of corroborating evidence as a basis
for an adverse credibility finding; we are concerned only with the body of
cases addressing corroboration after a finding that an applicant is credi-


      bership "in the files of the Jehovah's Witnesses
      Church," presumably in Nicaragua. Petitioner cannot
      have it both ways. Proving one's membership in a
      church does not pose the type of particularized evi-
      dentiary burden that would excuse corroboration.

Id. at 723-24. Thus, in Mejia-Paiz, the Court determined that
where material corroborating evidence was easily available to
the asylum seeker, i.e., it "does not pose the type of particu-
larized evidentiary burden that would excuse corroboration,"
failure to produce such evidence can constitute substantial
evidence supporting an adverse credibility determination.
Membership records contained in the files of a Nicaraguan
church were easily available enough for the trier of fact to
expect their production.

[3] In the case at bar, it would have been much easier for
Petitioner to produce his father's testimony than it would have
been for Mejia-Paiz to produce evidence of his membership
in a Nicaraguan church. Petitioner unambiguously testified
that his father was living in a nearby suburb. Petitioner's
father had an asylum application pending before the INS, and
therefore had no reason to fear attending the hearing before
the IJ. Petitioner never testified that his father was ill, out of
town, or otherwise indisposed. And while it certainly would
have been preferable for the IJ to adjourn the hearing so that
Petitioner's father could be called to testify, Petitioner's coun-
sel never moved for such an adjournment, and Petitioner,
quite sensibly, does not argue on appeal that the IJ plainly
erred by failing to order an adjournment sua sponte. It appears
from the record that counsel for the INS believed that the
father's testimony would differ from the son's, and made an
issue out of the father's absence for that reason. The IJ and
BIA might well have inferred that Petitioner knew that his
father could not corroborate Petitioner's testimony, and chose
not to call him as a witness for that reason. Such an inference
would not have been unreasonable.


We do not read Mejia-Paiz to reject all limitations on an
IJ's ability to surprise an asylum applicant with an adverse
credibility determination. The petitioner must be given an
opportunity at his IJ hearing to explain his failure to produce
material corroborating evidence.3 Moreover, the corroborating
evidence must be both material to the petitioner's asylum
claim and non-duplicative of other corroboration. Thus, where
an applicant produces credible corroborating evidence to but-
tress an aspect of his own testimony, an IJ may not base an
adverse credibility determination on the applicant's failure to
produce additional evidence that would further support that
particular claim.4 Finally, as we have indicated, the evidence
must be easily available. As we held in Lopez-Reyes v. INS,
79 F.3d 908, 912 (9th Cir. 1996), it is inappropriate to base
an adverse credibility determination on an applicant's inabil-
ity to obtain corroborating affidavits from relatives or
acquaintances living outside of the United States -- such cor-
roboration is almost never easily available.

[4] In conclusion, where the IJ has reason to question the
applicant's credibility, and the applicant fails to produce non-
duplicative, material, easily available corroborating evidence
and provides no credible explanation for such failure, an
adverse credibility finding will withstand appellate review.
However, because of the due process concerns discussed
below, we remand for a new hearing in the case at bar.


[5] Petitioner argues that his due process rights were vio-
lated because he was never given notice that the IJ could
question his credibility based on his failure to present his
3 In this case Petitioner was specifically asked to explain the lack of cor-
roboration and presented an explanation that both the IJ and BIA explicitly
found incredible.
4 Nor may an IJ base an adverse credibility finding on his disbelief of
an applicant's explanation for his failure to produce duplicative evidence.


father as a witness. If the IJ or BIA had considered Petition-
er's case subsequent to our decision in Mejia-Paiz, we would
reject his argument without hesitation. But as it stands, Peti-
tioner's IJ hearing preceded our decision in Mejia-Paiz by
fourteen months, and the deadline for the filing of Petitioner's
BIA brief was eleven months before Mejia-Paiz . Because
Mejia-Paiz established a clear rule on a legal issue that had
previously been unsettled, both under our law and under the
BIA's, principles of due process prevent us from holding Peti-
tioner to its evidentiary standard. Cf. Singh v. INS, 2000 WL
675138, at *4 (9th Cir. May 25, 2000) ("[H]ad Singh been
notified of the newly announced evidentiary requirements, he
may very well have been able to secure the necessary affida-
vits or declarations."). Accordingly, due process principles
require that Petitioner be given a second opportunity to prove
his eligibility for asylum to an IJ, along with an opportunity
to call his father as a witness who can potentially corroborate
the facts alleged in Petitioner's application.


For the foregoing reasons, the petition for review is
GRANTED. We remand to the BIA with instructions that it
remand for further proceedings5 consistent with this opinion.

5 We are sufficiently troubled by what we have read in the Administra-
tive Record to direct that a different IJ be assigned to consider Petitioner's
case on the basis of a supplemented record.