2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
9-28-2004 

# Dh aliwal v . Att y Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3491

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w . v i l l a no va . e du/thir dc ir c uit_2004/322NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-3491 GURDISH SINGH DHALIWAL, Petitioner

v. JOHN ASHCROFT, Attorney General of the United States, Respondent
Petition for Revi ew of an Order of the United Stat es Department of Justi ce Bo ard o f Imm igration Ap peals (BIA No. A76-101-690)
Submitte d Under Third Circ uit LAR 34.1(a)

September 27, 2004 Be for e: R EN DE LL , FU EN TE S an d S M ITH , Circu it Judges
.

(Fil ed: Septe mber 28, 2004)
OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge
. Gurdish Singh Dhaliwal, a ci tize n of India, petitions for review of a deci sion by th e Boardof I mmig ra ti on Ap pea ls (“ BIA” ) d enyin g hi s appl ic at io n fo r p ol itic al as y lum,2

wit hho ldin g of

rem ova l, and pro tectio n un der the C onv entio n A gain st T ortu re (“ CA T” ). In so rul ing, t

he BIA affirmed without opinion t

he findi ngs of the I mmigrati on Judge (“IJ”) th at Dh aliwa l lacke d cred ibility based on a failure to adeq uately pro ve his identity and inco nsis tent s tatem ents ma de in his te stim ony a nd h is w ritten asylum app licatio n. W e have juri sdict ion under 8 U.S. C. § 1252. For t he reasons that f

ollow, we wil l deny Dha liwal ’s pe titi on f

orre vi ew. I. Because we are writing for t he parti es who are famil iar wit h the rec ord and pri or pro cee din gs, w e w ill rec ite on ly thos e fa cts re leva nt to the is sue s no w b efo re u s. Dhaliwal was the sole wit ness at his asylum heari ng, and hi s testimony at the hear ing establish ed the follow ing fa cts. D haliw al is a 49 -year-old n ative o f Ind ia. He claim s to be a S ikh sin ce birth , belon ging to a fa mily of S ikhs. H is wife and three c hildren rema in in Indi a. He clai ms that he c ame to the Unit ed State s on February 23, 1998 to e scape perse cution in Ind ia for h is religion and p olitical inv olvem ent. A cc or di ng to D ha liw al’ s te sti m on y, he be ga n t o s up po rt th e A ka li D al M an n p ar ty, a politica l organ ization com prised largely of Sikh s, in 19 82. H e claim ed tha t he officially joined t he party sometime aft er 1992. He te sti fied that on June 20, 1991, he and a gr oup of ab ou t fi fty o r si xt y ot he r p er so ns , m an y of w ho m w er e o ff

ici al m em be rs o f th e p ar ty,
were arres ted for t

heir par ticipation in a politicaldemonstration agai nst t he cancell ation of an election. Although almost all of t hose arrested were released within two days,3

Dhaliwal cl aimed that

he was singl ed out and j aile d for fort y- five day s because he was colle cting f

unds for the party . He clai ms that during the pe riod he was i n jail , he was beaten once or

twice a week by

police
. Dhaliwal t esti fied that aft er his 1991 arres t, he was polit ical ly inact ive for s everal years. In Ju ne of

199 5, he w as arre sted in h is hom e afte r police learne d that h e plan ned to hol d a re li gi ous ga th er in g me mor ia li zi ng an e ve ntinvolvi ng t he ki ll in gs of

Si khs . H e test ifie d that he was jail ed for thr ee weeks, during which time he was i nsult ed, beat en with clubs , hung upsi de down, and had his ha ir and beard pull ed. Af ter bein g relea sed f

rom jail, Dh aliwa l was again politically ina ctive a nd o nly atte nded casual meetings. He testi fied that he became active agai n with his involvement in a demonstration on August 15, 1997, where he led members of t he party in chant ing slogans a gainst

the poli ce. Fol lowing thi s demonstration, police came to his home and
arres ted his father

and wife. Dhaliwal evaded the pol ice by hiding wit

h relatives and eventually

fled the country

and came to the Un ited States. Dhaliwal t esti fied that he ent ered the United Stat es with a pas sport c ontaining an entry visa. The passport

present ed at the asy lum heari ng, however, had no visa and none was offered into evidence. The name state d and signed in the pass port di d not conta in the
name “Singh ,” a surnam e adop ted by Sikhs to reject iden tification of one ’s caste by one’s given fam ily name . Furth ermo re, the p hoto grap h of Dh aliwa l in the p asspo rt show ed him with out a tu rban , the trad itional h eadw ear of Sikh s. No other o fficial id entity doc um ents4

were offered. In his o ral dec ision, the IJ stated two prima ry bases for his a dver se cred ibility determi nation: (1) Dhali wal’s fai lure t o establ ish hi s ident ity , and (2) numerous in co ns ist en cie s w ith in an d b etw ee n h is a pp lic ati on fo r a sylu m an d h is t es tim on y. Reg arding proo f of id entity, the IJ n oted th at the p asspo rt, the on ly official id entity doc ument o ffe re d, ra is ed mo re que st io ns t hanit ans wer ed. The o mis si on o f the n ame Singh a nd the ph oto of D haliwal w ithout a turban a nd w ith a trimmed b eard w ere inconsistent w ith his claim to be a S ikh. Dha liwal’s explan ation that these things w ere done to avoi d persecution was part icularly curious if he obt ained the passport in 1993 because, accordi ng to his test imony, this was during a period of ina ctivity when he had no problems wit

h the authorit ies and would not have anyapparent

reason t o disavow or conceal hi s rel igious or poli tica l affi liations. Also, al though Dhaliwaloffered seve ral lett ers writ

ten by various acquaint ances to e stabl ish hi s ident ity , the IJ found that none of the le tter s adequate ly

identi fied Dhali wal as the pe rson he cl aimed to be. Beyond the problems wit h proof of identity , the IJ was tr oubled by a number of inco nsis tenc ies w ithin and betw een Dh aliw al’s a ppl icatio n fo r asylu m a nd h is tes timo ny. First , the IJ note d Dhaliwal’s inconsi stent stat ements regarding when he offi cial ly joined the Akali Dal Mann party . In t he personalstat ement included in his asy lum appli cati on, he cla imed to hav e sup ported the pa rty since 19 82 an d to h ave o fficially join ed the party on April 13, 1992, expl aining hi s decis ion to j oin was precipitat ed by t he bad experi ence5

he endured aft er his firs t arr est i n 1991. In hi s testimony, however, he sai d severaltimes that he did n ot join th e gro up o fficially un til 1995 . Wh en co nfro nted w ith this inconsi stency

on cross- examinati on, he went back t o his ori ginal c laim t hat he had been a par ty mem ber sinc e 19 92, c laim ing that h e ha d m ade a m istak e, tw ice, in his te stim ony. Seco nd, the IJ fou nd D haliw al’s testim onial a ccou nt rega rding the pe riod fr om 199 1 to 1995, i. e., that he was polit ical ly inact ive, was completel y at odds with hi s asy lum application, in which he claimed to have actively t aken part in party meetings, rall ies, demonstrations, and fund-rai sing. Third, the IJnoted that in hi s asy lum appli cati on, Dhaliwal st ated the kill ing of a party secret ary

occurred on March 14, 1997, but at the hearing, he testifie d that t he kill ing occurr ed on April 4, 1997. Fourt h, the IJ found Dh aliwa l’s acco unt o f his f irst arrest w as illogic al; it wa s not lo gical th at the p olice w ould hold D haliwal, a no n-mem ber affiliate of the p arty, l onger than they would h old mo re active members or a party l eader. Last, t he IJ found Dh aliwal’s account of past persecution and fear

of future pe rsecut ion for being a Sikh were not c onsist ent with t he State Department’s 1997 India Pr ofile of Asyl um Claims & Country Condi tions (“Country

Report” or “ Report”). Specifi call y, the Country Report st ated: there was no evidence t

hat Sikhs faced haras sment, mi stre atment, or perse cution f or their rel igion or political o pinion s; Sikh s gen erally held h igh-ra nkin g po sitions a nd w ere res pecte d in Indian public life; and there was no significant pattern of discrimination against Sikhs. The B IA sum marily affirmed the IJ’s decision pu rsuant to 8 C .F.R. § 100 3.1(e)(4).6

On appe al, Dh aliwa l challen ges g enera lly the IJ’s co nclus ion reg arding his credibi lit y. Specifi call y, he contends t hat the IJ err ed in the determi nation t hat the documents offer ed to prove hi s ident ity were insuffi cient , the highli ghting of mi nor incon sistenc ies in his testimo ny, and th e con clusion that his te stimo ny wa s illogica l. II. The Atto rney G enera l may gra nt asylum to any alien wh o is un able o r unw illing to retur n to his or her home country“because of per secuti on or a well- founded fear of persecution on account

of race, reli gion, national ity , membershi p in a particular soci al group, or politicalopinion. ” 8 U.S.C. § 1101( a)(42) (A). The burden to prove a well-founde d fear of per secuti on lies with the a pplicant, who must es tabli sh a genuine fear of per secuti on and demonstrate that a reasonabl e person i n the same ci rcumstance s
wo uld sim ilarly fear pe rsecu tion. T he ap plican t’s ow n testim ony m ay be su fficien t to esta blish eligi bility fo r asylu m, a s lon g as the te stim ony is cred ible. See 8 C .F.R . § 208.13(a ). Wh ere the BIA issues a sum mary affirma nce, we essentially review the IJ’s dec ision as if

it w ere th e de cisio n of

the B IA
. See Dia v. Ashcroft , 353 F.3d 228, 247 (3d Cir. 2003) (en banc). Our review is limi ted to e nsuring t hat any findings are supported by sub stan tial ev iden ce. See id. We may rev erse th e BIA ’s dec ision o nly if “an y reason able adju dica tor [ wo uld ] be com pelle d to con clud e to th e co ntra ry.” 8 U .S.C . § 12 52( b)(4 )(B ). Further more, “[w]e wil l not di sturb t he IJ’s credibi lit

y det erminat ion and fi ndings of fact7

if they are ‘supported b y reasonable, substan tial and probative e vidence o n the record consider ed as a whole. ’” Tarrawall y v. Ashcroft , 338 F.3d 180, 184 (3d Cir. 2003) (quoti ng Bal as ubramanr im v. INS , 143 F.3d 157, 161 (3d Cir. 199 8)). III. Dha liwal’s argum ents on ap peal can b e generally categorized as follow s: (1) the IJ erred in the de termination that the d ocum ents offere d to prove Dha liwal’s identity were insufficient, and (2 ) the IJ erred in foc using on minor inco nsistencies in D haliwal’s testimo ny and in the co nclus ion tha t his testim ony w as illogic al. First, reg arding the IJ’s d eterm ination that the docu men ts offered to prov e his identity were insuffi cient , Dhali wal argues t hat his passport

was authenti c and vali d and that the IJ di d not adequately explai n why the document itself was deficient to establ ish his i dentit

y. He further argues that the fact that he is pi ctured in the pass port wit h a trimme d be ar d an d wi th out a turbanandth e fa ctth atth e pa ss port d oes not use th e name Singh do not pr ove that he is not a Sikh. He cont ends that none of these facts be ar on the issu e of iden tity or th e pr oba tive v alue of th e pa ssp ort a s an iden tity doc um ent. W e disagr ee. The essence of Dhaliwal’s cl aim that he is el igibl e for asylum is t hat he has suffered and f

ears per secuti on for being apoliticalSikh. His identity is of fundament al impo rtance to the d eterm ination of h is status a s a ref ugee and th e pas sport, th e only official d ocu me nt o ffe red to p rov e his iden tity, is cer tainl y relev ant to this d eterm inati on.8

The record shows t

hat the IJ gave due cons ideration to t he passport , and i ndeed allthe evidence offe red by

Dhaliwal, to prove he was i n fact t he person he cl aimed to be. Again,
we not e tha t the b urd en o f pr ovi ng e ligib ility as a r efu gee is on the a ppl ican t for asylum
. See 8 C .F.R. § 208 .13(a). H ere, D haliw al simp ly failed to m eet his b urde n of proo f as to his i dentit

y, as a Sikh or

otherwis e. Second, Dhali wal argues t hat the IJ err ed in accor ding too much weight to trivial inconsi stenci es between hi s testimony and a sylum application, namely to discr epancies relating to t

he date he j oined the Akali Dal Mann party , the degree of hi s invol vement with the party

immediate ly

after his fi rst arrest

in 1991, and the dat e of the ki lling of a party secret ary

in 1997. He cont ends thes e discr epancies can be explained as misst atements , mist akes in t ransl ation ( Dhaliwal t esti fied i n Punjabi t hrough an interpre ter), min or in n ature, o r not d iscrep ancie s at all. We disagree that the IJ attributed to o mu ch w eight to these discrep ancies. In Zubeda v. Ashcroft , 333 F .3d 46 3, 476 –77 (3d C ir. 2003 ), we o bserv ed tha t an IJ sh ould be cauti ous before pl acing t oo much weight on a dis crepancy between an asylum applic ation and subsequent test imony. Caution i s requi red in l ight of t he numerous factors that might make it di fficult for an ali en to articul ate his/her circumstances, including language di fficul ties . Even consi dering any potenti al language diffi culti es here, however, as not ed above, Dhaliwal’s t esti mony regarding the pe riod fr om 1991 until 1995 is completely

at odds wit

h his asylum appli cati on. Regardl ess of the date of hi s offici al1 Dha liwal further arg ues that the IJ erred in in terpreting the State D epartmen t’s

Country Report and in concluding his testimony was illogical. Regarding these argu men ts, we need only say that a reaso nable adjud icator w ould not b e com pelled to reach conclusions contrary to those found by the IJ. Ba sed on t he r eco rd, th e IJ’s inter pre tatio n of the C oun try Re por t wa s jus tified
. The IJ took at

face value t

he Report’s stat ement that “[t]he re is no evidence t hat Sikhs or Sikh part icularist s face hara ssment, mistr eatment or persecution merel y on t he basis of 9 membership, one cannot r easonably reconci le his stat ement in t he appli cati on, i. e., that he
wa s active ly taking p art in pa rty meetin gs, rallies, d emo nstration s, and fun d-raisin g, w ith his t esti mony that

during t his per iod he was poli tica lly inact ive. Dhaliwal’s argument that th es e s tate ment s wer e co nsi st ent in sof aras he s to ppe d hi s a ct iv itie s f ora pe ri od o f t ime after June 1991, but

decided men tally that he would struggl e and support the part y at some future time is unt enable. This incons ist ency i s not minor in natur e, nor can it be attributed to a mistake in translation. Indeed, du ring the direct exa mination, the IJ delibe rately stopped the questioning t o make it cl ear that Dhaliwal ’s te sti mony was that he w as no t active d uring this per iod. D ue to th e sign ifican ce of this inco nsisten cy and its direct impact on Dhaliwal’s overall cr edibilit y, t he IJ was justified i n relying on it, at l east in part , in maki ng his adver se credibili ty determi nation and we do not beli eve a reasonab le adjudicator w ould be c omp elled to find othe rwise. Furthe rmore, D haliwal’s conte ntion th at too m uch w eight w as giv en to a one- mo nth d iscrep ancy reg arding the da te of the ki lling of a party se cretaryis re asonable; however, we beli eve the I J’s deci sion mentions t

his i nconsist ency not

as a dis posit ive det ail, but rat her as i llus trative of one of a
nu m be r o f in co ns ist en cie s b etw ee n t he as ylu m ap pl ica tio n a nd th e te sti m on y. 1their

reli gion or pol iti cal opi nions. ” Dhaliwal se ems to argue t hat thi s stat ement may be inter preted to mean Sikhs may be persecut ed not for r eligi on or poli tica l opini ons, but for their po litical activity –i.e ., t hat Dhali wal was not pers ecuted for his subs cription to Si kh ideal s, but

for his parti cipat ion in par ty acti viti es. Alt

hough this stat ement admit s of other interpre tations, w e can not sa y that a reas onab le adju dicato r wo uld b e com pelled to interpret the statemen t differently from the IJ. T he sam e is true regarding Dha liwal’s testimo ny abou t his first ar rest. To say his ve rsion o f eve nts w as “illog ical” w as sim ply to saythat t he testimony was obj ecti vely implausible. Again, we cannot s ay, based on the re co rd , th at a re as on ab le a dj ud ica to r w ou ld be co m pe lle d t o f in d t o t he co nt ra ry. 2 Because Dhaliwal di d not speci fical ly appeal t he denialof his wit

hholding of r emoval cl ai m or th e d en ia l o f h is cl ai m fo r p ro te ct io n un de r t he Con ve nt io n Ag ai ns t T orture , w e do not pass upon e ither

clai m here. I t shoul d be noted, however, that the de nial of the withholding of removal cl aim would be evaluated under a more str ingent s tandard t han the “subs tanti al evi dence” st andard appl ied above, and such an appealwould have been rejec ted h ad it b een ma de. See Zubeda v. Ashcroft , 333 F.3d 463, 469 (3d Cir. 2003) (noting that the stand ard is a “clear prob ability” that th e app licant w ill be pe rsecu ted if returned to his n ative coun try). 10 Giv en D haliw al’s failu re to ad equa tely prove his iden tity or to exp lain inconsistencies in h is testimony and asylum ap plication, we co nclude tha t the IJ’s findings were based on subst antia l evide nce. 2 IV. For the reaso ns stated abo ve, we w ill DEN Y the p etition for review of the IJ’s decisi on.