FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BHUPINDER KUMAR,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 17-73412

Agency No.

A202-080-566

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 15, 2020*

Submission withdrawn March 2, 2021

Resubmitted November 22, 2021**

San Francisco, California

Filed November 30, 2021

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The panel withdrew this case from submission on March 2, 2021, 

pending the court’s decision in Alam v. Garland, 11 F.4th 1133 (9th Cir. 

2021) (en banc). The panel now unanimously concludes that this case 

remains suitable for decision without oral argument. See Fed. R. App. 

P. 34(a)(2).
2 KUMAR V. GARLAND

Before: M. Margaret McKeown and Jacqueline H. 

Nguyen, Circuit Judges, and Eric N. Vitaliano,*** District 

Judge.

Opinion by Judge McKeown

SUMMARY 

Immigration

Granting Bhupinder Kumar’s petition for review of a 

decision of the Board of Immigration Appeals upholding the 

denial of Kumar’s application for asylum and related relief 

on adverse credibility grounds, the panel concluded that the 

bulk of the credibility findings in this case were infirm, and 

remanded.

Kumar, who was born in India and belonged to a caste 

considered to be of lower social standing, joined the Bahujan 

Samaj Party (“BSP”) because of its opposition to the caste 

system. He asserted that as a result of his work for the BSP, 

he was beaten four times by the police and members of 

opposing parties. An immigration judge denied his 

application for asylum and related relief, and the BIA 

dismissed Kumar’s appeal.

** * The Honorable Eric N. Vitaliano, United States District Judge for 

the Eastern District of New York, sitting by designation.

**** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KUMAR V. GARLAND 3

The panel explained that under the REAL ID Act, IJs

must base credibility determinations on “the totality of the 

circumstances, and all relevant factors.” 8 U.S.C. 

§ 1158(b)(1)(B)(iii). However, even after the REAL ID Act, 

this court followed its “single factor rule,” under which the 

court would affirm an adverse credibility finding so long as 

one of the grounds on which that finding was based was 

supported by substantial evidence and went to the heart of 

the claim. In Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) 

(en banc), the court held that the REAL ID Act abrogated the 

single factor rule and that the court must affirm credibility 

findings only when they are supported by the totality of 

circumstances.

Applying this standard, the panel considered the four 

factors that the BIA relied on in upholding the adverse 

credibility determination here. First, as to the finding that 

Kumar provided inconsistent statements, the panel 

concluded that two of the three alleged testimonial 

inconsistencies were in fact not inconsistent at all. Second, 

as to the finding that a third-party letter conflicted with 

Kumar’s testimony, the panel concluded that the 

inconsistency was wholly illusory. Third, as to the finding 

that it was implausible that Kumar would not have suffered 

more injuries after a certain attack, the panel concluded that 

the basis for this conclusion relied entirely, and improperly, 

on conjecture. Fourth, as to the IJ’s conclusion that Kumar’s 

affect suggested that he was reciting a rehearsed story, rather 

than relating incidents he had personally experienced, the 

panel concluded that the IJ’s perception of Kumar’s 

demeanor passed the low bar for reviewing such findings.

The panel observed that the court declined to draw a 

bright line or engage in a number-counting analysis in Alam, 

instead noting that no specific number of inconsistencies 
4 KUMAR V. GARLAND

requires sustaining or rejecting an adverse credibility 

determination. The panel also observed that post-Alam

precedents suggest that falsehoods and fabrications weigh 

particularly heavily in the credibility inquiry, but explained 

that clear falsehoods and fabrications were entirely absent

here.

Acknowledging that the “totality of circumstances” 

review permits the court to uphold an adverse credibility 

finding, even where the court concludes that some of the 

grounds are not supported by substantial evidence, the panel 

concluded that the several rejected findings here all but 

gutted the adverse credibility determination. The court

remanded to the BIA to determine in the first instance 

whether the remaining factors—considered on their own—

suffice to support an adverse credibility determination.

COUNSEL

Pardeep S. Grewal, Law Offices of Pardeep S. Grewal, 

Castro Valley, California, for Petitioner.

Matthew A. Connelly, Senior Litigation Counsel; Papa 

Sandhu, Assistant Director; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.
KUMAR V. GARLAND 5

OPINION

McKEOWN, Circuit Judge:

Under the REAL ID Act, Immigration Judges (“IJs”) 

must base credibility determinations on “the totality of the 

circumstances, and all relevant factors.” 8 U.S.C. 

1158(b)(1)(B)(iii). However, even after the passage of this 

Act, we continued to follow our historical rule that when an 

IJ made an adverse credibility finding based on multiple 

grounds, we would affirm that finding “[s]o long as one of 

the identified grounds [wa]s supported by substantial 

evidence and [went] to the heart of [the] claim.” Wang v. 

INS, 352 F.3d 1250, 1259 (9th Cir. 2003). We called this 

“the single factor rule.” Now all of that has changed 

following the recent en banc decision in Alam v. Garland, in 

which we held that the REAL ID Act abrogated the single 

factor rule and that we must affirm credibility findings only 

when they are supported by the totality of circumstances. 

11 F.4th 1133, 1137 (9th Cir. 2021) (en banc). Hewing to 

the REAL ID Act and to the holding in Alam, we conclude 

that the bulk of the credibility findings in this case are infirm. 

We remand to the BIA to determine whether the few 

remaining factors are sufficient—in light of the totality of 

circumstances—to support such a finding.

I. BACKGROUND

Kumar was born in Punjab, India in 1979. He belonged 

to a “Scheduled Caste”—considered to be of lower social 

standing—and he joined the Bahujan Samaj Party (“BSP”) 

in 2007 because of the party’s opposition to the caste system. 

In 2013, Kumar was appointed the BSP leader for his village. 

He asserts that as a result of his work for the BSP, he was 

beaten four times between January 2013 and April 2014 by 

both the police and members of opposing political parties.
6 KUMAR V. GARLAND

The first incident took place in January 2013, when the 

police arrested Kumar, accused him of “forcing people to 

join BSP,” stripped him naked, beat him with wooden 

batons, and subjected him to electric shocks. The police 

threatened to kill Kumar if he continued working for the 

BSP. Once released from the police station—four to five 

hours after his arrest—he was “unable to even stand up” and 

was taken to the hospital where he was bandaged and given 

painkillers and “glucose injections.”

Undeterred, Kumar continued working for the BSP, and 

a few months later, while out campaigning, members of 

opposing political parties approached him and demanded 

that he shift allegiances and work for them. They beat him 

with baseball bats when he refused. His friends “tried to 

save” him, but the beating—which lasted “about half an 

hour”—did not end until a crowd gathered. Kumar returned 

to the hospital and received a similar treatment of painkillers, 

glucose injections, and bandages. He spent fifteen days 

recovering. He attempted to report the attack, but the police 

refused to document it, telling him that “we’ve already 

warned you to stay away from the BSP.”

The same opposition party members approached Kumar 

several months later. Once again, they demanded that he 

work for them, he refused, and they beat him. This time he 

lost consciousness. He woke up in a nearby clinic, where he 

received the same treatment as before. The same events 

unfolded once more a few months thereafter: members of 

opposition parties beat Kumar until he lost consciousness, 

and he woke up in a nearby clinic.

Less than two months later, in June 2014, Kumar left his 

home in India to come to the United States. His family 

reports that since he left, opposing political party members 
KUMAR V. GARLAND 7

have asked about his whereabouts and made threats should 

they find him.

Kumar arrived in the United States in August—entering 

near Hidalgo, Texas without a valid entry document. He was 

apprehended immediately and given a Credible Fear 

Interview (“CFI”) soon after. The asylum officer 

determined that Kumar had a credible fear of persecution if 

forced to return to India.

The Department of Homeland Security (“DHS”) served 

Kumar with a Notice to Appear; he conceded removability 

and sought asylum, withholding of removal, and protection 

under the Convention Against Torture (“CAT”). Kumar 

testified in support of his applications at two removal 

hearings, but the IJ found him not credible and denied all of 

his claims. The BIA dismissed Kumar’s appeal, citing four 

factors supporting the adverse credibility determination: 

inconsistent statements, a letter that conflicted with Kumar’s 

testimony, the implausibility of Kumar’s testimony, and 

Kumar’s demeanor. Neither the IJ nor the BIA analyzed 

whether, in the absence of the adverse credibility finding, 

Kumar would have established eligibility for any of his 

claims.

II. ANALYSIS

A. STANDARD OF REVIEW

In Alam v. Garland, the en banc court clarified the 

standard for reviewing adverse credibility determinations 

under the REAL ID Act: “[W]e must look to the ‘totality of 

the circumstances[] and all relevant factors.’” 11 F.4th 

at 1137 (quoting 8 USC § 1158(b)(1)(B)(iii)). We 

emphasized that “[t]here is no bright-line rule under which 

some number of inconsistencies requires sustaining or 
8 KUMAR V. GARLAND

rejecting an adverse credibility determination—our review 

will always require assessing the totality of the 

circumstances.” Id.

Because “the BIA reviewed the IJ’s credibility-based 

decision for clear error and relied upon the IJ’s opinion as a 

statement of reasons but did not merely provide a boilerplate 

opinion,” we review “the reasons explicitly identified by the 

BIA, and then examine the reasoning articulated in the IJ’s 

. . . decision in support of those reasons.” Lai v. Holder, 

773 F.3d 966, 970 (9th Cir. 2014) (internal quotations 

omitted). “Stated differently, we do not review those parts 

of the IJ’s adverse credibility finding that the BIA did not 

identify as most significant and did not otherwise mention.” 

Id. (internal quotations omitted).

Taking the totality of the circumstances into account, we 

review the BIA’s credibility determination for substantial 

evidence. See Li v. Garland, 13 F.4th 954, 956 (9th Cir. 

2021) (citing Shrestha v. Holder, 590 F.3d 1034, 1039 (9th 

Cir. 2010)).

B. THE BIA’S ADVERSE CREDIBILITY FINDING

The BIA identified four factors underlying its adverse 

credibility finding. In sum, we hold that most of the factors 

relied on by the IJ, and identified as significant by the BIA, 

in making the adverse credibility determination are not

supported by the record—that is, several of the alleged 

inconsistencies are not inconsistent at all, and the 

implausibility finding is wholly unsupported. Because so 

little remains in support of the adverse credibility finding, 

we grant the petition and remand to determine whether the 

totality of the circumstances continues to support that 

finding.
KUMAR V. GARLAND 9

1. Inconsistency of Statements

The first reason cited by the BIA was an inconsistent 

statement: Kumar stated during the CFI that he was released 

from police custody without his family paying a bribe, but 

two years later he testified to the IJ that his family did pay a 

bribe. The BIA found no clear error in the IJ’s conclusion 

that this discrepancy undermined his credibility. The BIA 

also identified two additional inconsistencies as relevant 

factors in the adverse credibility determination: first, while 

Kumar testified that he was “beaten all over his body” during 

the December 2013 attack, his asylum statement describing 

the same incident asserts only that he was “beaten on his 

arms and legs,” and second, while Kumar testified that he 

lost consciousness in the December 2013 attack, his asylum 

statement describing the same incident does not mention 

unconsciousness.

Our cases caution against relying too heavily on 

inconsistencies that could be attributable to simple human 

error or reluctance. See, e.g., Shrestha, 590 F.3d T 1044–45 

(describing the inevitability of some inconsistencies given 

the normal limits of human memory); Singh v. INS, 292 F.3d 

1017, 1023–24 (9th Cir. 2002) (acknowledging that 

individuals who have suffered abuse at the hands of their 

governments may be reluctant to fully answer all questions 

during the first meeting with U.S. officials). In his CFI, 

Kumar was not asked specifically about a “bribe,” and his 

response to the question, “Did your family pay for you to be 

released?” was ambiguous and potentially indicated that he 

did not understand the question. Further, the record of this 

interview are notes and not a verbatim transcript, and Kumar 

later freely volunteered that his family had paid a “bribe.”

But the REAL ID Act allows IJs to consider any factor 

as relevant to the totality of circumstances, even if not 
10 KUMAR V. GARLAND

conclusive on its own. This is true of an inconsistent 

statement, so long as Kumar’s explanation for the 

inconsistency is considered. Shrestha, 590 F.3d at 1045 

(“When an inconsistency is cited as a factor supporting an 

adverse credibility determination . . . the petitioner’s 

explanation for the inconsistency, if any, should be 

considered in weighing credibility.”).

Kumar received such an opportunity to explain the 

inconsistency when he was cross-examined by the 

government. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th 

Cir. 2011) (“[T]he opportunity to explain may be provided 

through cross-examination by the government, or even direct 

examination by the alien’s own attorney. . . .”) (internal 

citations omitted)). Here, after Kumar testified that his 

family paid a bribe to secure his release, the government 

attorney read Kumar’s earlier statement from the CFI and 

initiated the following exchange:

Q. Do you remember saying that?

A. I don’t remember that.

Q. Are you saying that you did not say that?

A. The bribe was paid. That’s how they 

released me.

Q. Are you saying that you did not tell the 

Immigration Officer that your family did 

not pay for you to be released?

A. I don’t remember that.
KUMAR V. GARLAND 11

Of course, an IJ must consider an applicant’s explanation 

for an inconsistency if the explanation is “reasonable and 

plausible.” Rizk, 629 F.3d at 1088 (quotations and citations 

omitted); see also Shrestha, 590 F.3d at 1045. When asked 

about his testimony, Kumar said that he did “not remember” 

making the earlier statement. Given that two years had 

passed, this may very well have been an honest answer, but 

it was hardly an explanation for the inconsistency.

Because the IJ provided Kumar with a sufficient 

opportunity to explain the inconsistency, this reason 

underlying the adverse credibility is supported by the record 

and warrants some weight. Yet the same is not true with 

respect to the two additional inconsistencies relied upon by 

the BIA—for the simple reason that neither was, in fact, an 

inconsistency. Being “beaten on [one’s] arms and legs” is 

not inconsistent with being “beaten all over [one’s] body.” 

Nor are the accounts conflicting simply because one 

recounting of a violent attack was more detailed than the 

other. The record does not support the BIA’s reliance on 

these other alleged inconsistencies.

2. Third-party letter

The BIA also cited a third-party letter from a BSP leader 

that described Kumar’s role in the party, his persecution, and 

the various attacks he suffered. The IJ concluded that the 

letter called into question Kumar’s credibility because it did 

not mention a fourth incident of torture to which Kumar 

testified, and because the letter noted that Kumar’s father is 

a leading member of the political party, while Kumar did not 

mention this fact until asked about it. The BIA found that 

the letter “materially conflicts” with Kumar’s testimony 

because it does not describe one of the four attacks and 

because it notes that Kumar’s father was a leader of the 
12 KUMAR V. GARLAND

political party, a fact that Kumar had not brought up on his 

own.

The letter did not undermine Kumar’s testimony. 

Though the BIA concluded that the letter “materially 

conflicts” with Kumar’s testimony, that finding overlooks 

the fact that the letter corroborated three of the four violent 

incidents, bolstering Kumar’s credibility rather than 

undermining it. The letter’s omission of a single fact that 

was included in Kumar’s oral testimony does not render the 

letter inconsistent. See Singh v. Ashcroft, 301 F.3d 1109, 

1112 (9th Cir. 2002) (holding that there was no 

inconsistency where a doctor’s letter did not mention all of 

the applicant’s injuries). The mention of Kumar’s father as 

a party leader is neither a “glaring inaccuracy” nor is it 

probative of credibility. Kumar was not asked about his 

father’s role in the party until the letter was submitted and,

when asked, he stated that his father was a member. The 

record does not support the conclusion that the letter 

highlighted an inconsistency in Kumar’s testimony.

3. Plausibility

The third factor cited by the BIA was the plausibility of 

Kumar’s testimony. The IJ found it implausible that Kumar 

would not have suffered more injuries after sustaining an 

attack for thirty minutes. The BIA agreed, concluding that 

Kumar only “suffered minimal injuries.” This conclusion 

relied on speculation and conjecture, which “cannot form the 

basis of an adverse credibility finding.” Shah v. INS, 

220 F.3d 1062, 1071 (9th Cir. 2000). Here, the IJ relied on 

speculation about the force of the beating, the medical 

implications of that force, and the appropriate treatment for 

various injuries. See Jibril v. Gonzales, 423 F.3d 1129, 

1135–36 (9th Cir. 2005) (improper speculation concerning 

whether petitioner could have survived gunshot wound). In 
KUMAR V. GARLAND 13

doing so, both the IJ and the BIA improperly disregarded 

critical evidence, including that Kumar took fifteen days to 

recover, and mischaracterized other evidence—concluding 

improperly that the injuries were “minimal,” despite no such 

evidence in the record. See Chawla v. Holder, 599 F.3d 998, 

1008 (9th Cir. 2010) (IJ’s skepticism as to the plausibility of 

testimony was based on mischaracterization of testimony 

and thus failed to support the adverse credibility 

determination).

4. Demeanor

The fourth credibility issue cited by the BIA was 

Kumar’s demeanor. The BIA deferred to the IJ’s conclusion 

that Kumar’s “affect” suggested that he was “reciting a 

rehearsed story, rather than relating incidents he had 

personally experienced.” The IJ found it suspicious that 

Kumar described trauma with a “flat” affect. We give 

“special deference” to the IJ’s observations about demeanor, 

Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999), and, 

indeed, “[a]ll aspects of the witness’s demeanor, including 

. . . the modulation or pace of his speech and other nonverbal communication—may convince the observing trial 

judge that the witness is testifying truthfully or falsely.” 

Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014) 

(quotations and citations omitted). The IJ’s perception of 

Kumar’s demeanor—though subjective—passes this low 

bar.

Having sorted through the BIA’s bases for the adverse 

credibility determination, we conclude that two of the three 

alleged testimonial inconsistencies are in fact not 

inconsistent at all; the alleged inconsistency between the 

third-party letter and Kumar’s testimony is wholly illusory; 

and the basis for implausibility relies entirely, and 
14 KUMAR V. GARLAND

improperly, on conjecture. All that’s left is Kumar’s flat 

affect and the ambiguous inconsistency related to a bribe.

In Alam, we declined to draw a bright line or engage in a 

number-counting analysis, instead noting that no specific 

number of inconsistencies requires sustaining or rejecting an 

adverse credibility determination. In the end we must affirm 

credibility findings only when they are supported by the 

“totality of the circumstances,” 11 F.4th at 1137. While our 

precedents do not provide a roadmap for navigating a postAlam landscape, they do suggest that falsehoods and 

fabrications weigh particularly heavily in the adverse 

credibility inquiry. In the recent case of Iman v. Barr, we 

held that “the IJ and the BIA erred by relying on an omission 

that has no tendency to show Iman fabricated his claims of 

persecution when considered in light of the totality of the 

circumstances.” 972 F.3d 1058, 1069 (9th Cir. 2020). 

Likewise, in Li v. Garland, this court’s first published 

decision applying Alam, we held that the totality of 

circumstances supported the adverse credibility 

determination in large part because the petitioner had 

submitted false information in her asylum and visa 

applications. 13 F.4th at 960–61. This case stands in contrast 

to Li because such clear falsehoods and fabrications in 

official submissions are entirely absent.

We acknowledge that in some circumstances, our 

“totality of circumstances” review of the BIA’s 

determination permits us to uphold an adverse credibility 

finding, even where we conclude that some of the grounds 

are not supported by substantial evidence. However, the 

several rejected findings here all but gut the BIA’s adverse 

credibility determination. For this reason, we remand to the 

BIA to determine in the first instance whether the remaining 
KUMAR V. GARLAND 15

factors—considered on their own—suffice to support an 

adverse credibility determination.

PETITION GRANTED.