FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JARNAIL SINGH, 

Petitioner, No. 02-74426

v. Agency No.  A73-220-243 ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 15, 2004—San Francisco, California

Filed April 13, 2005

Before: Betty B. Fletcher, Edward Leavy, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Leavy

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

4145
COUNSEL

George T. Heridis (argued) and Earle A. Sylva, Rai and Associates, San Francisco, California, for the petitioner. 

Dimple Gupta (argued) and Allen W. Hausman, Office of

Immigration Litigation, Civil Division, U.S. Department of

Justice, Washington, D.C., for the respondent.

4148 SINGH v. GONZALES
OPINION

BERZON, Circuit Judge: 

Jarnail Singh, a native and citizen of India, entered the

United States without inspection in June 1994. He applied for

asylum in November 1998, citing persecution by the Indian

police because he supported Sikh separatism. The Immigration Judge (“IJ”) denied Singh’s applications for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”), after making an adverse credibility

determination. The Board of Immigration Appeals (“BIA”)

streamlined Singh’s appeal and affirmed “the results of the

decision below” pursuant to 8 C.F.R. § 1003.1(e)(4) (2002).

We review the IJ’s decision as the final agency determination,

see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.

2003), grant the petition for review, and remand. 

BACKGROUND

Singh’s asylum application and testimony in support of his

claims for relief from removal, taken together, stated the following: Singh was an active supporter of the Akali Dal Mann

party and the All India Sikh Student Federation. On four

occasions, the Indian police persecuted him because of his

advocacy for a Sikh homeland of Khalistan. After his final

arrest, he went into hiding. His wife and father were harassed

and arrested because, while in hiding and going “to different

places,” Singh did not report to the police in accord with a

condition of his last release from detention. In support of his

applications for relief, Singh provided documentary evidence,

including an affidavit from his father. 

After Singh’s removal hearing, IJ Anna Ho issued a written

decision in which she made an explicit adverse credibility

determination, specifying four grounds: 

1) Singh omitted two details concerning his first arrest that

were recounted in his father’s supporting affidavit: a false

SINGH v. GONZALES 4149
charge of spousal abuse and a promise he made when he was

released that he would not associate with Sikh separatists. 

2) There were discrepancies between two sets of arrest

dates, those that Singh reported to an asylum officer in his

asylum interview and those contained in Singh’s testimony. 

3) There was an inconsistency concerning Singh’s role in

a 1992 election boycott between Singh’s father’s affidavit and

Singh’s testimony. 

4) There was a conflict between the father’s affidavit and

Singh’s testimony concerning when Singh’s last arrest took

place. 

As an alternative to the adverse credibility determination

based on these four grounds, the IJ held that “even if assuming arguendo, the respondent’s testimony to be true, the conditions of India have changed since he left the country.” The

IJ did not make an explicit finding about whether Singh’s testimony, if credible, established past persecution. 

Singh appealed to the BIA. Singh’s attorney provided

explanations in the brief for the grounds relied upon by the IJ

in making her adverse credibility determination, stating that:

[Singh] did not mention the false charge of spousal

abuse because it was just that [—] a false charge created by the police to embarrass the respondent. . . .

The respondent argues that he did not mention the

charge because it did not deserve to be mentioned.

. . . Concerning the promise not to associate with the

Khalistan movement, the respondent also did not

consider it worthy of mention. It was a promise

extracted from him by the police. He did not give it

freely and did not believe that he was bound by it.

In addition, the brief stated “that [Singh] was nervous during

his meeting with the asylum officer and that accounts for his

4150 SINGH v. GONZALES
errors [during the asylum interview].” On the issue of the

election boycott, the brief “maintain[ed] that [Singh] was

involved in the movement and that it was not, as the IJ argues,

a single event, the boycott of the election. . . . The fact that

he was in prison on the day of the election does not prove that

he did not participate in the movement.” Finally, the brief

argued that the date inconsistency identified by the IJ with

respect to Singh’s last arrest was “minor.” 

The BIA affirmed the results of the IJ’s decision without

opinion. See 8 C.F.R. § 1003.1(e)(4) (2002). 

DISCUSSION

I

a. Conflict between Singh’s testimony and his father’s

affidavit with regard to Singh’s first arrest 

The IJ’s adverse credibility conclusion was based in part on

her statement that:

Singh testified that he was arrested on April 3, 1990,

taken to the police station and beaten. This testimony

conflicts with the statement provided by the respondent’s father, where the father wrote that the police

filed a false charge of spousal abuse against the

respondent. The respondent never mentioned this,

nor did he mention that he had to promise that he

would not associate with the Khalistan movement

upon his release on April 3, 1990. 

This ground for finding that Singh lied at his removal hearing

is not supported by substantial evidence. 

[1] First, Singh was not asked about his father’s statements

regarding the false charges or the promise not to associate on

cross-examination, and nothing he said at the hearing conSINGH v. GONZALES 4151
flicted with those statements. Where an asylum applicant is

“denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony[, t]he IJ’s doubt

about the veracity of her story . . . cannot serve as a basis for

the denial of asylum.” Chen v. Ashcroft, 362 F.3d 611, 618

(9th Cir. 2004). Second, Singh did mention the release condition and the false charge in the declaration he attached to his

asylum application: 

My father was able to secure our release . . . on the

condition that they will have no associations with the

Federation or the Khalistan movement. . . . Nevertheless, the following month, the government of

Haryana filed criminal charges against me alleging

that I had mistreated my wife. . . . When our case

was finally presented before a court, my wife

explained that the charges were false. 

Cf. Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (“The

IJ must consider evidence contained in [an] application for

asylum.”). Third, nothing Singh said at the hearing conflicted

with his father’s statements; rather, Singh omitted two details.

“[T]he mere omission of details is insufficient to uphold an

adverse credibility finding.” Bandari v. INS, 227 F.3d 1160,

1167 (9th Cir. 2000). Moreover, Singh could not have had a

nefarious reason for failing to testify to these matters, as they

in no way detract from his eligibility for asylum: A false

charge of spousal abuse is consistent with persecution on

account of political opinion, as is the release condition mentioned by his father. See Shah v. INS, 220 F.3d 1062, 1068

(9th Cir. 2000) (stating that if “discrepancies cannot be

viewed as attempts by the applicant to enhance his claims of

persecution, [they] have no bearing on credibility” (citations

and internal quotation marks omitted)). That Singh did not

repeat in his testimony peripheral details that he had already

provided to the agency and that his father included in a supporting affidavit provides no support at all for the conclusion

4152 SINGH v. GONZALES
that Singh was not “arrested on April 3, 1990, taken to the

police station and beaten.” 

b. Discrepancies between dates of arrest presented at

Singh’s asylum interview and in his testimony 

The IJ concluded that Singh:

testified that he was arrested on April 3, 1990, June

22, 1991, January, 1992, and December 29, 1993.

This testimony is inconsistent with his testimony

before the asylum officer, wherein he told the asylum officer that he was arrested on March 10, 1991,

and in December, 1991. 

This adverse credibility finding is based solely on an

alleged discrepancy identified by the asylum officer in his

“Assessment To Refer.”

1

 For the following reasons, we find

that this document cannot support the adverse credibility

determination. 

Singh represented in his asylum application, which he

signed on November 8, 1996, that he was arrested in April

1990, June 1991, January 1992, and December 1993. At his

asylum interview on October 14, 1998, according to the

Assessment To Refer made that day by the asylum officer,

Singh presented

testimony which was not consistent. Applicant’s

declaration indicates that his second and third

arrest[s] were in June 1991 and January 1992; not as

he testified on March 10, 1991 and December 1991.

Applicant’s testimony regarding his third arrest was

also inconsistent, he testified that his third arrest was

in December 1991, then January 1992, then Decem1We have reproduced the Assessment To Refer in its entirety as an

appendix to this opinion. 

SINGH v. GONZALES 4153
ber 1993 back to December 1991 and then January

15, 1992. Applicant determined that his third arrest

was on January 15, 1992 after it was pointed out that

he could not have been detained for one month

[from] December 1991 to January 1992 and be

released after the February 1992 elections as he had

testified. 

The IJ made only one — albeit imprecise — reference to

the Assessment To Refer before she rendered her final decision of May 2, 2001, during a brief hearing on March 28,

2001, at which Singh’s asylum application was admitted into

evidence. There is no indication from the record that Singh

received a copy of the Assessment To Refer prior to March

28, 2001, and it is unclear whether he or his counsel received

a copy of the document then, or at any time before the IJ

issued her decision.2 The IJ stated to Singh’s counsel on

March 28, 2001: “I see that [government counsel] handed me

a referral notice wherein your client’s asylum was denied by

the Asylum Office. . . . I’m going to go ahead and mark the

2At the March 28 hearing, the IJ asked Singh’s counsel whether “you’re

going to ask the Court to review the denial [by the Asylum Office].” In

fact, pursuant to the applicable regulation, Singh’s asylum interview could

not have led to a denial of asylum, but rather resulted in the referral of his

application to the IJ for a de novo hearing. See 8 C.F.R. § 208.14(c)(1) (“If

the asylum officer does not grant asylum to an applicant after an interview

conducted in accordance with § 208.9 . . . in the case of an applicant who

appears to be inadmissible or deportable under section 212(a) or 237(a) of

the Act, the asylum officer shall refer the application to an immigration

judge, together with the appropriate charging document, for adjudication

in removal proceedings . . . .”). 

The “Referral Notice” sent to Singh two weeks after his asylum interview stated in bold: “This is not a denial of your asylum application,”

adding that “[t]he determinations [the Asylum Office] made in referring

your application are not binding on the immigration judge, who will evaluate your claim anew.” If, as appears to be the case, Singh was sent only

the Referral Notice, then he would have learned simply that “your claim

was deemed not credible” because: “You provided inconsistent testimony

regarding the dates of your arrests and the lengths of your detentions.” 

4154 SINGH v. GONZALES
asylum application as Exhibit 2, dated today and initial it.”

(Emphasis added). The record does not reflect that any other

exhibits were admitted on March 28, 2001. The Assessment

To Refer is, however, included in the administrative record as

part of Exhibit 4, which bears the handwritten date “3/28/01”

along with the IJ’s initials on the “Referral Notice” sent to

Singh (but not on the Assessment To Refer). The IJ’s final

decision of May 2, 2001 states that “[o]n March 28, 2001, the

Service filed the Referral Notice from the Asylum Office,

which has been received as Exhibit 4.” No independent mention is made of the Assessment To Refer, which is characterized in the IJ’s decision as Singh’s “testimony before the

asylum officer.” 

At his removal hearing, Singh testified, consistent with his

asylum application, that he was arrested on April 3, 1990,

June 22, 1991, January 1992, and December 29, 1993. Neither

the IJ nor the INS3 mentioned at the hearing the asylum officer’s assertion that Singh had stated otherwise at his asylum

interview. Singh was not asked about whether the asylum

officer’s report of the interview was accurate or, if it was, the

reason for the asserted date confusion. 

We need not decide whether any date inconsistency

between the asylum interview and the removal hearing is minor.4

3On March 1, 2003, the INS ceased to exist and its functions were transferred to the newly-created Department of Homeland Security. See

Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). For the

sake of consistency, we refer to the INS in this opinion. 

4The INS’s position is that the asserted inconsistency between the asylum interview and Singh’s testimony regarding the date of the third arrest

goes to the heart of Singh’s asylum claim, because it is at odds with

Singh’s testimony about the February 1992 election boycott. Singh testified that he was detained for a month in January 1992, and released after

the February election. If Singh was released after the election, he could not

have been arrested in December 1991, as he allegedly told the asylum officer, and detained for only a month. The date discrepancy if it existed thus

amounted to at most a month. For reasons elaborated below concerning

general principles of date recollection, we are skeptical that such a discrepancy supports an adverse credibility finding, but need not decide

whether it does. 

SINGH v. GONZALES 4155
Cf. Bandari, 227 F.3d at 1166 (“[W]e have frequently characterized discrepancies in dates which reveal nothing about an

asylum applicant’s fear of his safety to be minor inconsistencies that cannot form the basis of an adverse credibility finding.” (citation and internal quotation marks omitted)).

Assuming its pertinence, the asserted contradiction of Singh’s

statements at his asylum interview may not be relied upon as

substantial evidence that he is not credible. 

[2] Certain features of an asylum interview make it a potentially unreliable point of comparison to a petitioner’s testimony for purposes of a credibility determination. BarahonaGomez v. Reno, 236 F.3d 1115 (9th Cir. 2001), explained the

significant procedural distinctions between the initial quasiprosecutorial “informal conferences conducted by asylum

officers” after the filing of an asylum application, and the

“quasi-judicial functions” exercised by IJs, who preside over

hearings in which “[t]estimony of witnesses is taken under

oath at a transcribed hearing.” Id. at 1120-21. BarahonaGomez described the asylum interview as follows: “The officer meets informally with the applicant, considers the documents presented with the asylum application, then decides

whether asylum should be granted or whether the matter

should be referred to an IJ for formal adjudication.” Id. at

1120. 

It bears noting that the current role of asylum officers in

conducting these interviews is significantly different from

what it was a decade ago:

[I]n 1995, the Attorney General amended the regulations and comprehensively restricted the asylum officers’ authority over asylum applications. With the

limited exception of nonimmigrants who are presently in a lawful status, an asylum officer has been

divested of authority to deny an application for asylum and reduced merely to screening and granting all

applications in which the applicant is subject to

4156 SINGH v. GONZALES
removal, or referring the applicant’s case to an

Immigration Judge for an exclusion or deportation

hearing. . . . The amendment of the regulations effectively removed the two principal functions — preparing a written assessment of the claim and

rendering a written decision — that would require,

or at least provide an impetus for, in the majority of

asylum interviews, an asylum officer to keep an

accurate and reliable record of the applicant’s statements during the interview. 

In re R-S-J-, 22 I. & N. Dec. 863, 881-82 (BIA 1999) (en

banc) (Vacca, Board Member, concurring in part and dissenting in part) (citations omitted).5

[3] The current regulation applicable to asylum interviews

provides that the “asylum officer shall have authority to

administer oaths,” 8 C.F.R. § 208.9(c), but not that the officer

must take evidence under oath. In this case, there is no evidence that Singh’s representations at the asylum interview

were made under oath. Nothing in the Assessment To Refer

indicates that an oath was administered. Nor was Singh asked

during his removal hearing whether the evidence he provided

to the asylum officer was under oath.6

5Asylum officers are a creation of the agency: 

Congress has not designated either the position of ‘asylum officer’ or the full scope of authority to be exercised by an individual

that the Attorney General has assigned to act as an ‘asylum officer.’ An asylum officer’s authority derives principally from the

Attorney General’s authorization to ‘establish a procedure’ for an

alien in the United States to seek asylum. 

In re R-S-J-, 22 I. & N. Dec. at 878 (Vacca, Board Member, concurring

in part and dissenting in part) (citing 8 U.S.C. § 1158(a)). 

6For an example of a case in which the BIA was unsure whether an asylum interview took place under oath, see In re R-S-J-, 22 I. & N. Dec. at

864 (remanding for determination of the issue where “[t]he respondent has

not alleged that he was not put under oath by the asylum officer, but there

is no affirmative evidence that an oath was administered”). 

SINGH v. GONZALES 4157
[4] In addition, “[u]pon completion of the interview, the

applicant or the applicant’s representative shall have an

opportunity to make a statement or comment on the evidence

presented.” 8 C.F.R. § 208.9(d). Again, in this case the record

does not reflect whether Singh was afforded an opportunity to

comment on the evidence at the end of the asylum interview.

[5] Further, although Singh signed his asylum application,

and later attested to it at his removal hearing, Singh was not,

contemporaneously or at the removal hearing, asked whether

the asylum officer’s summation of his interview was accurate.

At the time of the interview, Singh signed only a notice

acknowledging that he would return to learn the results.

Although asylum officers are sometimes called to testify at

removal hearings to confirm the contents of their notes or

reports, see, e.g., Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.

2004), the INS presented no such testimony here.7

[6] Moreover, there is some reason to question the reliability of the Assessment To Refer. At removal hearings, asylum

applicants are provided with translators to ensure due process.

A court-provided translator interpreted at Singh’s removal

hearing, conducted in Punjabi. At asylum interviews, by contrast,

[a]n applicant unable to proceed with the interview

in English must provide, at no expense to the Ser7Because Singh has not raised the argument, we do not address whether

the absence of the asylum officer for purposes of cross-examination rendered the Assessment To Refer inadmissible. Cf. Saidane v. INS, 129 F.3d

1063, 1065 (9th Cir. 1997) (holding fundamentally unfair the presentation

of evidence where “the INS made no effort to call an admittedly available

witness and relied instead on that witness’s damaging hearsay affidavit”);

Cunanan v. INS, 856 F.2d 1373, 1374-75 (9th Cir. 1988); see also 8

U.S.C. § 1229a(b)(4)(B) (“[T]he alien shall have a reasonable opportunity

to examine the evidence against the alien, to present evidence on the

alien’s own behalf, and to cross-examine witnesses presented by the Government . . . .”). 

4158 SINGH v. GONZALES
vice, a competent interpreter fluent in both English

and the applicant’s native language or any other language in which the applicant is fluent. The interpreter must be at least 18 years of age. Neither the

applicant’s attorney or representative of record, a

witness testifying on the applicant’s behalf, nor a

representative or employee of the applicant’s country

of nationality . . . may serve as the applicant’s interpreter. Failure without good cause to comply with

this paragraph may be considered a failure to appear

for the interview for purposes of § 208.10. 

8 C.F.R. § 208.9(g). The asylum officer’s Assessment To

Refer does not mention a translator, yet states that Singh “was

unable to provide any information beyond a short declarative

sentence that the event[s] happened.” We cannot tell — and

nor could the IJ — whether the interview was conducted in

Punjabi or, instead, in English, a language with which Singh

is apparently not comfortable. 

Our recent decision in Li illustrates the importance we have

placed on ensuring that sufficient indicia of reliability exist

before an asylum applicant’s airport interview may properly

be used as an impeachment source. Li stated:

We hesitate to view statements given during airport interviews as valuable impeachment sources

because of the conditions under which they are taken

and because a newly-arriving alien cannot be

expected to divulge every detail of the persecution

he or she sustained. But here, the IJ heard substantial

evidence from Inspector Westlake [Li’s INS interviewer] about the procedures used to ensure that

interviews were accurately understood and recorded.

Both the INS supervisor and the interpreter would

carefully question and evaluate the alien before the

interview; if any sign of a language barrier was

detected, the interview would be halted until an

SINGH v. GONZALES 4159
appropriate interpreter could be found. After the

interview, the interpreter would review questions

and answers line-by-line with the alien to ensure

there were no translation problems and to correct any

misstatements that may have occurred. 

378 F.3d at 962-63 (citations omitted). In this case, by contrast, the asylum interviewer did not testify, and the reliability

of Singh’s Assessment To Refer is insufficiently supported by

the record. On the critical question of when Singh’s second

and third arrests occurred, for example, the assessment states

that the asylum officer “pointed out” to Singh that his dates

were inconsistent. With only a written summary, but no transcript or contemporaneous notes nor any testimony by the

asylum officer or Singh (as he was not asked), it is impossible

to discern precisely how, when, and in what context this interjection occurred. Without that detail, one cannot sensibly

evaluate Singh’s reaction to the interjection, including

whether he offered an explanation for any discrepancy and

whether he affirmatively changed his story or instead failed to

object to an assertion by the interviewer. Just as the IJ’s assertion in her opinion that there was an inconsistency between

Singh’s testimony and his father’s affidavit concerning

Singh’s participation in the 1992 election boycott, discussed

below, cannot be evaluated without knowing what Singh actually said, so the asylum officer’s Assessment To Refer is not

sufficient evidence of what Singh said to permit evaluation of

an asserted conflict.8

8Singh did state in his brief to the BIA “that he was nervous during his

meeting with the asylum officer and that accounts for his errors [during

the asylum interview].” This explanation was made on appeal to the BIA.

There had been no questioning regarding the asserted error at the removal

hearing. At that point, absent a remand, the record could not be amplified

with respect to the details of Singh’s asylum interview, so he could only

“address the credibility question before the BIA” on the basis of the existing record. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660-61

(9th Cir. 2003) (due process requires as a “constitutional minimum” that

a petitioner be “afforded . . . notice that his credibility was at issue and an

4160 SINGH v. GONZALES
[7] In sum: The Assessment To Refer does not contain any

record of the questions and answers at the asylum interview,

or other detailed, contemporary, chronological notes of the

interview, but only a short, conclusory summary — essentially, an opinion. There is no transcript of the interview.

There is no indication of the language of the interview or of

the administration of an oath before it took place. The asylum

officer did not testify at the removal hearing. Finally, the

applicant was not asked at the hearing before the IJ about the

accuracy of the asylum officer’s report or given any opportunity to explain the discrepancies the asylum officer perceived.

We conclude that under these circumstances, the Assessment

To Refer, standing alone, is not substantial record evidence

supporting the IJ’s adverse credibility ground. 

c. Election boycott

The IJ’s decision also stated that Singh’s father 

wrote that the respondent was engaged in the election campaign of 1991 and boycott movement of

1992, but the respondent testified that he was in custody prior to the boycott since he gave money to the

Akali Dal Mann movement. The respondent testified

that he was in prison during the boycott and was not

released until after the boycott. Thus, his testimony

is materially inconsistent with his father’s statement

that he was involved in the boycott movement. 

[8] There is no such contradiction. Singh testified that he

gave money “to help the people to boycott that [election],”

opportunity to respond to the bases for attack on his credibility”). Given

that limitation, Singh’s lawyer’s argument on appeal concerning unspecified “errors” during the asylum interview does not constitute an admission

that the Assessment To Refer accurately reflects the content of Singh’s

asylum interview. 

SINGH v. GONZALES 4161
and characterized his activities, for which he was arrested, as

“participating” in the boycott movement: “[T]he police

arrested me . . . because I collected funds for the Federation.

. . . [T]hey told them that you told the people, you’re telling

people not to take part and . . . that’s the reason they arrest

you.” The father’s affidavit is not to the contrary. It states that

Singh “actively engaged in the . . . boycott movement of

1992” (emphasis added), not that he himself purportedly boycotted the election, or was in the streets on election day. The

purported inconsistency identified by the IJ thus does not

exist, and does not support the adverse credibility determination. See Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir.

2002). 

d. Discrepancy between Singh’s testimony and his father’s

affidavit with respect to the last arrest 

The IJ stated that: “The respondent testified that his last

arrest was December, 1993, whereas his father wrote inconsistently that his son was subjected to worse beating and torture during his last police experience in January, 1994. The

respondent testified he was arrested and beaten for two days

on December 29, 1993.” 

Singh’s father’s affidavit does state that Singh’s “last police

experience” was in January 1994.9 Singh testified more specifically that he was arrested on December 29, 1993, kept in

police custody and tortured for two days, and then imprisoned

for about a month before being released on condition that he

report to the police weekly. According to both Singh and his

father, Singh had a “police experience” in January 1994; the

only discrepancy, such as it is, is that Singh stated that the

9This affidavit states that Singh was “subjected to worse conditions,

beating and torture” during this detention. The INS argues that Singh’s

father meant “worst,” but, read in context, the affidavit appears to be referring comparatively to Singh’s brother, who has been granted asylum in the

United States. 

4162 SINGH v. GONZALES
“experience” began in the last three days of December, while

the father only mentions January. That the two reports are as

close as they are regarding the timing of the last arrest, even

though both were given several years later, supports rather

than detracts from Singh’s credibility. 

[9] More generally, the IJ’s focus on minutely disparate

dates for an arrest that took place seven-and-a-half years

before the removal hearing reflects a flawed approach to credibility determination. The ability to recall precise dates of

events years after they happen is an extremely poor test of

how truthful a witness’s substantive account is. 

All of us have had the experience of having a lucid recollection of a particular event, yet being unable to date the event

within months or even years. Scientific research supports this

observation:

Among the most common failures of source memory is remembering when something happened. . . .

Victims of repeated physical or sexual abuse, for

example, remember the gist of their experiences.

However, they often confuse the details of particular

incidents, including the time or dates of particular

assaults and which specific actions occurred on

which specific occasion. As events recur, it can

become difficult to remember exactly when specific

actions occurred even though memory for what happened is clear. 

Notwithstanding our inability to accurately report

times and dates, witnesses are commonly asked to do

so.

Deborah Davis & William C. Follette, Foibles of Witness

Memory for Traumatic/High Profile Events, 66 J. Air L. &

Com. 1421, 1514-15 (2001) (footnotes omitted). 

SINGH v. GONZALES 4163
[10] The phenomenon of poor date recollection is often

particularly evident in the culturally diverse and trauma-filled

setting of refugee claim adjudication.10 “Events that are central to an asylum case in a legal sense may not be what an

applicant perceived to be important when the events happened. . . . Details such as dates, which people often do not

remember, may be unreasonable to expect.” Michael Kagan,

Is Truth in the Eye of the Beholder? Objective Credibility

Assessment in Refugee Status Determination. 17 GEO. IMMIGR.

L.J. 367, 385-86 (2003); see also Ilene Durst, Lost in Translation: Why Due Process Demands Deference to the Refugee’s

Narrative. 53 RUTGERS L. REV. 127, 156 (2000) (noting that

certain societies “simply do not think in terms of schedules,

dates, or units of time, as Westerners do; ‘time’ in these cultures is situational, social, or activity-focused”). 

The reason for applicants’ lapses in date recollection is that

calendar dates are frequently not part of the direct mental picture of an event that is recorded in one’s memory. Scientists

have identified a commonly-held and mistaken “chronological

illusion” that considers chronology to be intrinsic to autobiographical memory. See William J. Friedman, Memory for the

Time of Past Events, 113 PSYCHOL. BULL. 44, 44 (1993). In

fact, accurately described, chronology is but a “thin veneer on

the more basic substance of coincidence, locations in recurrent patterns, and independent sequences of meaningfully

related events.” Id. at 61-62. 

10As noted in a recent empirical study of Kosovar and Bosnian refugees:

Laboratory and field studies have shown that people recall more

details that are central when an event has a high level of emotional impact, such as armed robbery, than when an event is emotionally neutral. Their recall of central details is, however, at the

expense of their recall of peripheral details. Also, peripheral

detail is more susceptible to disruption after the event. 

Jane Herlihy et al., Discrepancies in Autobiographical Memories — Implications for the Assessment of Asylum Seekers: Repeated Interviews Study.

324 Brit. Med. J. 324, 325 (2002) (emphasis added) (endnote omitted). 

4164 SINGH v. GONZALES
People do not walk around with the equivalent of date

stamps in their heads, like the camera feature that produces

photographs identifying the date on which pictures were

taken; if they did, that feature would be unnecessary. See id.

at 58 (“[T]hat internal time tags or conventional dates are regularly assigned . . . has no support.”). Instead, we “naturally

code long-term memories by the meaning and associations

attached to them, so that the information remembered is an

interpretation, not a true recording.” Kagan, supra, at 385.

Attaching a date to an event has to be accomplished by a separate mental effort. That effort can occur, for a “small minority of events,” Friedman, supra, at 58, simultaneously with

the sensory experience, because of a strong desire to remember the date, of one’s wedding, for example, or of President

Kennedy’s assassination. 

[11] More commonly, connecting events to dates occurs

later, through a cognitive process of reconstructing a date

from written records, or by carefully recalling clues — such

as a sequence of events, a seasonal climate, proximate holidays, etc. — until one arrives at an ascertainable date, or at

least a signifier from which an event’s date can be calculated

relatively accurately. See Juliet Cohen, Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers, 13 INT’L J. REFUGEE L. 293 (2001)

(“[W]e can recall the year in which the dog was lost on the

beach by attaching other memories to that year such as the

age of the dog, the people present at the incident, the emotions experienced, and so on.”). Searching for a discrete date

by “jogging” one’s memory is a method that depends on sifting an unpredictable number of reference points. See Friedman, supra, at 59 (“[T]he amount and nature of available

contextual information differ greatly from event to event

because of variation in the initial significance of the event,

loss of information with the passage of time, schematization

of repeated similar experiences, and many other idiosyncratic

influences.”). The process is therefore fraught with potential

inaccuracies, see, e.g., Norman R. Brown et al., The SubjecSINGH v. GONZALES 4165
tive Dates of Natural Events in Very-long-term Memory, 17

COGNITIVE PSYCHOL. 139 (1985), in a manner that other types

of memory retrieval — such as considering the relative

recency of sequential events (e.g., an arrest and a later, related

trial) — may not be, absent mental impairment. Consistently

with the phenomenon that most date recollection involves a

reconstructive process prone to inaccuracy, we have held that

“minor discrepancies in dates that . . . cannot be viewed as

attempts by the applicant to enhance his claims of persecution

have no bearing on credibility.” See, e.g., Damaize-Job v.

INS, 787 F.2d 1332, 1337 (9th Cir. 1986). We adhere to that

principle here, and conclude that the IJ’s reliance on her perception of a date discrepancy between Singh’s account of his

last arrest and that given in his father’s affidavit is not a valid

ground for the adverse credibility determination.

----

As we have determined that none of the reasons cited by

the IJ “are valid grounds upon which to base a finding that the

applicant is not credible,” Mendoza Manimbao, 329 F.3d at

658 (citation and internal quotation marks omitted), we need

not address whether the agency’s failure to address Singh’s

explanations for the alleged incongruities affects the validity

of the IJ’s adverse credibility determination. Cf. 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.”);

Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004). 

Conclusion

[12] None of the four adverse credibility grounds relied

upon by the IJ is supported by substantial evidence. The IJ did

not determine whether Singh’s testimony, if credible, established past persecution or a well-founded fear of persecution.

We therefore remand for further proceedings, accepting

Singh’s testimony as credible, to determine his eligibility for

4166 SINGH v. GONZALES
asylum, withholding of removal, and CAT relief. See He v.

Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003); cf. INS v.

Ventura, 537 U.S. 12 (2002) (per curiam). 

PETITION FOR REVIEW GRANTED; REMANDED.

APPENDIX

ASSESSMENT TO REFER

Applicant is a 33-year-old male native of India and citizen of

India. 

Applicant credibly testified he entered the United States without inspection on June 8, 1994, at San Ysidro, CA, and was

admitted as a [sic] and showed by clear and convincing evidence that he timely filed. 

Applicant fears that he will be harmed on account of his political opinion. 

Applicant testified that he was a member of the All India Sikh

Student Federation (Federation). As a member of the Federation, Applicant collected funds and pasted posters. He was

arrested four times. He was arrested April 3, 1990; March 10,

1991; December 1991; and December 29, 1993. After each

arrested [sic] Applicant was detained for various lengths of

time and was beaten and tortured by the police. 

Applicant presented testimony which was not consistent or

sufficiently detailed. Therefore, he was not found to be credible. 

Applicant presented testimony which was not consistent.

Applicant’s declaration indicates that his second and third

arrest were in June 1991 and January 1992; not as he testified

SINGH v. GONZALES 4167
on March 10, 1991 and December 1991. Applicant’s testimony regarding his third arrest was also inconsistent, he testified that his third arrest was in December 1991, then January

1992, then December 1993 back to December 1991 and then

January 15, 1992. Applicant determined that his third arrest

was on January 15, 1992 after it was pointed out that he could

not have been detained for one month was [sic] December

1991 to January 1992 and be released after the February 1992

elections as he had testified. Applicant also testified that he

left India on June 2, 1994, however, he also testified that after

his last arrest in December 1993 he was detained for one

month and upon his release, he left India within a few days

time. This information is material to Applicant’s claim

because he testified that he was [sic] left India due to these

arrests. 

Applicant presented testimony which was not detailed. Applicant was repeatedly asked to describe his arrests and his political activities. However, he was unable to provide any

information beyond a short declarative sentence that the event

happened. This information is material to Applicant’s claim

because he testified that he left India due to these arrests

which occurred after he engaged in political activity. 

Applicant has not shown there is a reasonable possibility of

suffering the persecution that he fears. 

For the foregoing reasons, the applicant is not eligible for asylum status in the United States. Assessment is to refer to the

Immigration Judge. 

LEAVY, Circuit Judge, concurring: 

I concur in the result. The adverse credibility determination

is not supported by substantial evidence. 

4168 SINGH v. GONZALES
This circuit has articulated a rule of law that “Minor inconsistencies in the record that do not relate to the basis of an

applicant’s alleged fear of persecution, go to the heart of the

asylum claim, or reveal anything about an asylum applicant’s

fear for his safety are insufficient to support an adverse credibility finding.” Mendoza Manimbao v. Ashcroft, 329 F.3d

655, 660 (9th Cir. 2003). The several citations to medical and

psychological journals that discuss the scientific explanations

for lapses in date recall, none of which are in the record, suggest that our appellate decision is premised on factfinding that

has not been tested by the adversarial process. Furthermore,

the opinion incorrectly suggests that an inaccurate process of

date recollection is the reason underlying our “minor discrepancy” jurisprudence. I would find it sufficient to rely upon our

well-established precedent. By engaging in our own factfinding, we invite another court, or even an administrative body,

to reject our holding as precedent, if, in its superior factfinding process, it finds that we are wrong on the facts.

SINGH v. GONZALES 4169