This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

SUKHDEV SINGH, aka Manjaf Singh

 Petitioner,

 v.

ERIC H. HOLDER, Jr., Attorney General,

 Respondent.

No. 07-71641

Agency No. A200-101-350

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 5, 2010

Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

Manjaf Singh (“Singh”), a native and citizen of India, petitions for review of

a final order of removal issued by the Board of Immigration Appeals (“BIA”),

denying his applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that

Singh had permanently resettled in Austria, and that Singh’s testimony was not

FILED

DEC 16 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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credible. The BIA affirmed. For the reasons that follow, we conclude that neither

finding is supported by substantial evidence.

I. FIRM RESETTLEMENT FINDING

The government has not presented direct evidence that Austria issued Singh

“a formal offer of some type of official status permitting the alien to reside in that

country indefinitely,” nor has the government shown “that direct evidence of a

formal offer is unobtainable.” Maharaj v. Gonzales, 450 F.3d 961, 976 (9th Cir.

2006) (en banc). Accordingly, the government has failed to carry its burden of

establishing that Singh is “firmly resettled” in Austria. 8 C.F.R. § 208.15; see also

Maharaj, 540 F.3d at 967. Thus, Singh is not barred from seeking asylum under

regulations applicable to his application. 8 C.F.R. § 208.13(c)(2)(i)(B).

II. ADVERSE CREDIBILITY FINDING

As we said in Gui v. INS, “[w]e do not accept blindly an IJ’s conclusion that

a petitioner is not credible. Rather, we examine the record to see whether

substantial evidence supports that conclusion and determine whether the reasoning

employed by the IJ is fatally flawed.” 280 F.3d 1217, 1225 (9th Cir. 2002)

(internal citation and quotations omitted). The REAL ID Act requires that

credibility determinations “be made after considering ‘the totality of

circumstances, and all relevant factors.’” Shrestha v. Holder, 590 F.3d 1034, 1040
3

(9th Cir. 2010). Considering the totality of the circumstances in this case, the IJ’s

adverse credibility finding is not supported by substantial evidence. 

The BIA cited five grounds for affirming the IJ’s credibility determination. 

Before considering each of these grounds in turn, we note that Singh’s second

hearing is troubling. The BIA remanded Singh’s case after the first hearing

because the transcript had “an excessive amount of indiscernible testimony” due to

“the interpreter and the respondent . . . speaking simultaneously.” On remand, the

BIA directed the IJ to “prepar[e] a complete transcript of the proceedings including

a new hearing, if necessary.” The IJ decided to conduct a new hearing but, at the

start of the second hearing, told the parties that their task was to “recreate the [first]

hearing.” During questioning, the IJ frequently referred to Singh’s testimony from

the first flawed hearing. Thus, in effect and unwittingly, the IJ improperly shifted

the burden to Singh to disprove the previous finding that Singh was not credible. 

We therefore scrutinize the IJ’s findings carefully.

a. The date of Singh’s high school graduation

The BIA affirmed the IJ’s conclusion that Singh’s testimony regarding the

timeline leading up to his first beating was inconsistent and changed from the first

merits hearing to the second. The IJ’s focus on the date of Singh’s high school

graduation favored a trivial (and debatable) discrepancy over substantial evidence
Attorney Viney Gupta is familiar to us because he has been the subject of 1

more than one ineffective assistance of counsel claim before this court. See, e.g., 

Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007); Taher v. Mukasey, 295 F.

App’x. 178 (9th Cir. 2008).

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to the contrary. This is exactly the sort of cherry-picking forbidden in Shrestha,

590 F.3d at 1040. 

Singh’s written and oral testimony about his time in college and the

subsequent beating by the police were consistent. The IJ instead focused on the

date of Singh’s high school graduation and attributed answers to Singh which

Singh never gave. For example, Singh never claimed to have graduated high

school in 1979, as the IJ stated. The IJ suggested that date based on the IJ’s own

calculation, but Singh did not confirm it. The IJ’s mischaracterization of Singh’s

testimony cannot support an adverse credibility finding. Tekle v. Mukasey, 533

F.3d 1044, 1053 (9th Cir. 2008) (rejecting finding of inconsistent testimony when

the IJ incorrectly summarized the testimony).

The IJ’s skepticism about the timeline of Singh’s education was based

largely on Singh’s asylum application, which was prepared by his attorney, Viney

Gupta. However, the application is clearly unreliable. First, page four of Singh’s 1

application states that he attended high school for ten years. This does not make

sense. Second, the same page states that Singh worked as a Store Clerk in San
We note that on the same day Attorney Viney Gupta prepared this asylum 2

application, he also prepared an I-134 Affidavit of Support from Singh’s cousin,

Jagir Singh, who lived in San Diego. Taken together, the documents give rise to a

clear inference that there was a mix-up of information. 

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Diego beginning in February 2006. Singh was in detention and otherwise

ineligible for a work permit at that time. See 8 C.F.R. § 208.7. 

2

Thus, considering the totality of the circumstances, the high school date on

the asylum application is insufficient to cast doubt on Singh’s overall credibility. 

“Inconsistencies due to an unscrupulous preparer [of an asylum application],

without other evidence of dishonesty . . . do not provide a specific and cogent basis

for an adverse credibility finding.” Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254

(9th Cir. 2003) (internal citations omitted). Moreover, a trivial inconsistency, if

there was an inconsistency here at all, is not substantial evidence that Singh was

not credible. See Shrestha, 590 F.3d at 1044. 

b. The letter from Singh’s physician

The BIA affirmed the IJ’s finding that Singh was not credible because the

doctor’s letter Singh submitted about his 1987 injuries did not specify that Singh

was beaten. The letter from Singh’s treating physician, however, is not, on its face,

inconsistent with Singh’s testimony. See Singh v. Ashcroft, 301 F.3d 1109, 1112

(9th Cir. 2002) (finding a doctor’s letter not inconsistent with petitioner’s claims
6

when it did not directly contradict his testimony). The letter merely suggests a

possible cause of Singh’s injuries. Moreover, Singh offered several plausible

explanations why the doctor may not have stated that Singh was beaten. The

failure of the IJ to articulate reasons for rejecting Singh’s explanations was error. 

See Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009) (quoting Kaur v.

Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (“An adverse credibility finding is

improper when an IJ fails to address a petitioner’s explanation for a discrepancy or

inconsistency.”)).

The IJ also faulted Singh for not providing corroborating evidence about the

1987 beating. But, as we stated in Aden, “an applicant cannot be turned down

solely because he fails to provide evidence corroborating his testimony, where he

does not have and cannot reasonably obtain the corroboration.” 589 F.3d at 1045;

see Kaur, 379 F.3d at 890 (finding that documents from friends and neighbors in

India are not easily available). Even if Singh was able to reach his family in India,

it is unreasonable to expect that they would have been able to track down an

emergency room physician who treated him nearly a quarter century ago.

c. Singh’s return trips to India

The BIA affirmed the IJ’s conclusion that it was illogical for Singh to travel

to India nearly every year from 1993 to 2003 if he was in danger. The IJ erred in
The dissent makes much of the fact that Singh’s family remained in India 3

during this period. Such evidence is “manifestly irrelevant” unless the family

members are similarly situated to the petitioner. Jahed v. INS, 356 F.3d 991, 1001

(9th Cir. 2004); accord Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006)

(irrelevant that petitioner’s family remained in India unharmed, because they were

not “similarly situated”). Singh’s asylum application is based on his political

activity in a separatist movement that advocates the creation of an independent

Sikh state. Nothing in the record suggests that his wife and two small sons were

involved in this political movement. Because they were not similarly situated,

their continued presence in India is not relevant to our analysis.

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failing to state reasons for rejecting Singh’s explanation of his occasional visits to

India during the years when he lived in Austria. Singh testified that he stayed

away from India for more than five years after the 1987 beating. He risked

returning only after his mother wrote to him that she was dying. Return trips to

visit a dying parent do not support an adverse credibility finding. Smolniakova v.

Gonzales, 422 F.3d 1037, 1050 (9th Cir. 2005). While visiting his mother, Singh

discovered that he could travel to his home town without being harassed by police. 

Singh was not engaged in political activity during those visits and claimed he was

lulled into a false sense of security. After returning permanently to India, Singh 3

renewed his involvement with the Sikh separatist movement and once again came

to the attention of police. Within months, he was arrested and beaten. Singh’s

explanation for his return visits is credible, and the IJ erred in not offering reasons

for rejecting it. See Soto-Olarte, 555 F.3d at 1091.
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e. Singh’s misstatements to border authorities and the 

train tickets from Austria

The BIA affirmed the IJ’s adverse credibility finding because Singh told

border officers that he was an Austrian citizen and carried a train ticket that seemed

to contradict his testimony about how he came to the United States.

Singh testified that an agent gave him a fake Austrian passport and a train

ticket from Vienna to Madrid to support his assumed identity. Even though Singh

presented false travel documents to U.S. customs officials, he immediately

identified himself by his true name and stated that he was seeking asylum when he

was apprehended for entering the country illegally.

As we stated in Paramasamy v. Ashcroft, 295 F.3d 1047, 1054 (9th Cir.

2002), “the use of false documents for travel is not a proper basis for an adverse

credibility determination.” Further, we have always recognized the distinction

between “false statements made to establish the critical elements of the asylum

claim from false statements made to evade INS officials.” Akinmade v. INS, 196

F.3d 951, 956 (9th Cir. 1999). Therefore, the fake passport and false train ticket

are not substantial evidence to support an adverse credibility finding. 

f. The 2004 and 2005 beatings

Finally, the BIA affirmed the IJ’s conclusion that Singh’s testimony about
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the beatings in 2004 and 2005 was “vague, lacking in detail, and without any

corroboration.” But the BIA cites no rationale for this conclusion. Singh testified

to the specific dates of his arrests, the events that precipitated them, the

approximate number of people arrested, the length of his detention during each

encounter, the number of officers who engaged in the persecution, the ways in

which he was physically mistreated, the instruments used to beat him, and the

warnings he was given before his release. His testimony was neither vague nor

lacking in detail. Indeed, it was rather specific. Substantial evidence does not

therefore support an adverse credibility finding on this ground.

g. The evidence supporting Singh’s claim

Immigration courts should not “selectively consider evidence, ignoring that

evidence that corroborates an alien’s claims . . .” Shrestha, 590 F.3d at 1040. The

IJ and BIA ignored significant evidence that favored finding Singh credible. 

Neither the IJ’s nor the BIA’s opinions mention the signed and sealed letter from

Simranjit Singh Mann, the leader of the Sikh separatist movement, attesting to

Singh’s position in the movement and verifying Singh’s continued risk of

persecution in India. Moreover, neither the IJ nor the BIA addressed the country

conditions report. The IJ and the BIA thus erred in not considering this evidence

in support of Singh’s claim.
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h. Conclusion

In sum, substantial evidence does not support the IJ’s adverse credibility

determination. “[W]hen each of the IJ’s or BIA’s proffered reasons for an adverse

credibility finding fails, we must accept a petitioner’s testimony as credible.” 

Kaur, 379 F.3d at 890. 

We therefore GRANT the petition and REMAND to the BIA for further

proceedings to determine whether, accepting Singh’s testimony as credible, he is

eligible for relief. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.

2006).

PETITION GRANTED AND REMANDED