FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAJ KUMAR, 

Petitioner,

No. 03-70191

v.  Agency No.

ALBERTO R. GONZALES, Attorney A75-579-218

General,

Respondent. 

RAJ KUMAR, 

Petitioner, No. 03-73449

v. Agency No.  A75-579-218 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 12, 2005—Pasadena, California

Filed January 23, 2006

Before: Stephen Reinhardt, Alex Kozinski, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Kozinski

829
COUNSEL

Garish Sarin, Law Offices of Garish Sarin, Los Angeles, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General; Linda S. Wendtland, Assistant Director; John S. Hogan, Office of Immigration Litigation, Washington, D.C., for the respondent. 

KUMAR v. GONZALES 833
OPINION

REINHARDT, Circuit Judge: 

Raj Kumar (Raj), an Indian citizen and native of the northern Indian state of Jammu and Kashmir, petitions for review

of the Board of Immigration Appeals’ (BIA) order affirming,

without an opinion, the denial of his applications for asylum,

withholding of removal, and relief under the Convention

Against Torture (CAT). He also petitions for review of the

BIA’s denial of his motion to reopen. We conclude that the

Immigration Judge (IJ) erred in finding (1) that Raj was not

credible, (2) that Raj had not established a nexus between his

past persecution and at least one of the five protected grounds

enumerated in 8 U.S.C. § 1101(a)(42)(A), and (3) that Raj had

failed to demonstrate a reasonable fear of future persecution.

FACTUAL AND PROCEDURAL BACKGROUND

According to Raj’s sworn declaration, in the early morning

of January 6, 1998, police officers stopped him as he walked

to his neighborhood temple in Jammu and Kashmir and asked

him whether he knew the whereabouts of Syed Ali Shah,

whom the police had identified as a suspected terrorist and

Muslim separatist. Raj pointed the officers in the direction of

Shah’s house but initially refused to accompany them there,

in part because he did not believe that Shah was a terrorist.

After the officers physically assaulted Raj and threatened him

with arrest and possible death if he did not cooperate, he

agreed to lead them to Shah’s house. 

When Raj and the police arrived at Shah’s residence, Shah

answered the door carrying a gun. Upon seeing that Raj was

with law enforcement personnel, Shah attempted to flee and

was shot by the officers and thereafter arrested. After Shah’s

arrest, Raj was released by the police. Several hours later,

individuals associated with Shah came to the Kumar home

and, believing that Raj had been involved in Shah’s arrest,

834 KUMAR v. GONZALES
began yelling threats and throwing stones at the house. That

evening, Raj and his brother Rajinder were arrested by the

local police. The arresting officers informed them that Shah

had died from his gunshot wounds but, prior to his death, had

told the police that Raj and Rajinder were involved in terrorist

activities. 

The brothers were taken to the police station, where Raj

was repeatedly and severely beaten with wooden sticks and

leather belts by officers who told him that he would be killed

if he did not disclose the identities of Muslim terrorists and

reveal information about their planned terrorist activities.

Despite Raj’s truthful pronouncements that he was not

involved with any militant or terrorist organization and could

not provide the police with any relevant information, his confinement and physical abuse continued until February 6, 1998,

when his father successfully bribed a police officer to release

him along with his brother. 

When Raj returned home from the police station he discovered that, during his confinement, individuals associated with

Shah who were involved with Muslim terrorist organizations

had come to the Kumar home seeking revenge for Shah’s

arrest and death. These individuals had killed Raj’s brother

Ram and also threatened to kill Raj, Rajinder and other members of the Kumar family. When Raj and Rajinder learned of

these threats, they fled India; the two brothers arrived in the

United States by way of Germany and Canada on February

26, 1998, and subsequently separated. 

On or about April 24, 1998, Raj applied for asylum and

withholding of removal. At a brief preliminary hearing before

the IJ on December 16, 2000, Raj additionally requested relief

under CAT. A hearing on the merits of Raj’s case was held

on May 25, 2000. At that hearing, Raj submitted in evidence,

among other things, his sworn declaration detailing the events

described above, Rajinder’s application for asylum, the death

certificate for his brother Ram which was sent from Jammu

KUMAR v. GONZALES 835
and Kashmir, a letter from his mother and father stating that

a newly-appointed police official had threatened to kill him if

he returned to India, and several photographs depicting injuries suffered from the beatings at the police station. Also in

evidence were country reports from India which stated,

among other things, that India was the site of significant civil

rights abuses stemming from “deficient police methods and

training” as well as “violent secessionist movements” responsible for “extrajudicial executions and other political killings,

torture, and brutality.” These problems were “acute in Jammu

and Kashmir,” where “torture and rape by police” and “arbitrary arrest and incommunicado detention” operated in conjunction with a “judicial system [that] barely functions.” 

On September 14, 2001, the IJ denied Raj’s applications for

asylum, withholding of removal, and relief under CAT. The

IJ based the decision on his findings (1) that Raj was not credible, (2) that Raj had failed to establish a nexus between the

harm suffered and a protected ground, and (3) that the threat

of future persecution was speculative and thus Raj’s fear of it

was not reasonable. 

With respect to his first finding that Raj was not credible,

the IJ concluded that Raj had submitted fraudulent documentary evidence. Specifically, the IJ determined that a number

four written on the date line of Rajinder’s asylum application

was “precisely the same peculiar and uniquely styled” number

four that was written on Ram’s death certificate. Based upon

this and nothing more, the IJ surmised that the death certificate was likely forged by Raminder Singh, who had prepared

the asylum applications for both Raj and Rajinder. 

The IJ also noted that several of the photographs attached

to Raj’s asylum application which purported to show injuries

that he had suffered at the hands of the Indian police officers

were identical to photographs attached to Rajinder’s application. The IJ concluded based upon this finding that Raj was

attempting to claim injuries that were actually suffered by his

836 KUMAR v. GONZALES
brother. The IJ also stated that he did not believe Raj’s contention that he did not know where Rajinder was at the time

of the hearing, despite Raj’s statements that Rajinder was a

truck driver and that the brothers had separated out of economic necessity. According to the IJ, these considerations

taken together with what the IJ determined to be inconsistencies between Raj’s factual allegations and the Indian country

reports required an adverse credibility finding. 

Second, the IJ ruled that, even if Raj was credible, he was

ineligible for asylum because he had failed to establish a

nexus between the harm that he had suffered and at least one

of the five grounds protected by the asylum provision of the

Immigration and Nationality Act (INA). On this point, the

decision stated as follows: “[Raj] has no political contact nor

associations with any group whatsoever. He had no contacts

with any militants. . . . Here, questions were asked and a confession requested. That was the extent of the testimony about

a nexus about the harm suffered and one of the five enumerated grounds from the respondent.” With respect to his third

finding that Raj had also failed to establish a reasonable fear

of future persecution, the IJ cited only evidence that Raj’s

parents remained in India and had not been harmed by the

separatist factions that had killed Raj’s brother and threatened

the lives of Raj and Rajinder. Based upon these three findings,

the IJ denied Raj’s application for asylum. 

Incorporating by reference his analysis of Raj’s asylum

claim, the IJ also denied Raj’s application for withholding of

removal because that standard is more difficult to meet than

the asylum standard. He ruled that because Raj could not meet

the lesser asylum standard, he necessarily could not meet the

stricter standard for withholding of removal. 

Lastly, the IJ determined that Raj was not entitled to relief

under CAT. The IJ cited his credibility ruling and further held

that, even if Raj’s allegations were true, the harm that he had

KUMAR v. GONZALES 837
suffered at the police station did not rise to the level of torture

as that term is defined under CAT. 

On December 13, 2002, the BIA affirmed the IJ’s decision

without an opinion. Raj filed a motion to reopen, which the

BIA denied. He subsequently petitioned for review of both

rulings. This appeal consolidates the two petitions for review,

although Raj’s brief does not address the denial of his motion

to reopen. 

STANDARD OF REVIEW

We review for substantial evidence the BIA’s decision that

an applicant has not established eligibility for asylum.

Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004).

Under that standard, the BIA’s determination must be upheld

if it is supported by reasonable, substantial and probative evidence from the record. Knezevic v. Ashcroft, 367 F.3d 1206,

1210-11 (9th Cir. 2004); see also INS v. Elias-Zacarias, 502

U.S. 478, 481 n.1 (1992) (“[t]o reverse the BIA finding we

must find that the evidence not only supports that conclusion,

but compels it”). 

We also review under the substantial evidence standard the

BIA’s decision that an applicant has not met the higher burden required for withholding of removal, Thomas v. Ashcroft,

359 F.3d 1169, 1174 (9th Cir. 2004) reh’g en banc granted,

382 F.3d 1154 (9th Cir. 2004), superceded sub nom. Thomas

v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), and the findings

underlying its decision that an applicant is not eligible for

relief under CAT. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th

Cir. 2004). Adverse credibility determinations are also

reviewed under the substantial evidence standard. Tawadrus

v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004). 

Where, as here, the BIA adopts the reasoning of the IJ

without an opinion of its own, we review the decision of the

838 KUMAR v. GONZALES
IJ applying the rules set forth above. Zahedi v. INS, 222 F.3d

1157, 1162 (9th Cir. 2000).

ANALYSIS

I. Adverse Credibility Finding

A. Purported Forgery of Ram’s Death Certificate 

The IJ found that Raj was not credible, relying in large part

upon his determination that Ram’s death certificate, which

was submitted in support of Raj’s asylum application, was

likely a forgery. The sole reason the IJ posited to support this

conclusion was that the death certificate contained a “peculiar

and uniquely styled” number four that was similar to a number four handwritten in Rajinder’s asylum application.

Because Rajinder’s application was prepared by Singh, as

Raj’s was, the IJ concluded that Singh had forged the death

certificate. 

[1] “We do not accept blindly an IJ’s conclusion that a petitioner is not credible.” Aguilera-Cota v. INS, 914 F.2d 1375,

1381 (9th Cir. 1990). Rather, we examine the record to determine “whether substantial evidence supports that conclusion,

and . . . whether the reasoning employed by the IJ is fatally

flawed.” Id. Adverse credibility findings may not be based

upon speculation or conjecture. Vera-Villegas v. INS, 330

F.3d 1222, 1231 (9th Cir. 2003). In judging the veracity of

documentary evidence, the IJ must use the same standard he

would in judging the credibility of testimonial evidence: “an

IJ must provide a specific, cogent reason for rejecting [the

evidence], and this reason must bear a legitimate nexus to that

rejection.” Zahedi, 222 F.3d at 1165. 

[2] It would be difficult to imagine a more precise example

of “speculation and conjecture” than the IJ’s finding, based

upon nothing more than his own uninformed visual comparison of the two number fours at issue, that Singh had forged

KUMAR v. GONZALES 839
Ram’s death certificate. In fact, the date containing the “suspect” number four in Rajinder’s asylum application was not

“4/29/98,” as the IJ stated in his decision, but rather “4/

24/98,” as verified by the corresponding typewritten date on

the following page. Thus, although the IJ was willing to brand

the death certificate a forgery based upon his own visual comparative handwriting analysis of a number four in Rajinder’s

asylum application, he misidentified a different number four

in the same date in the same document. 

[3] Further, the IJ failed to substantiate his opinion regarding the legitimacy of Ram’s death certificate by submitting

the documents to a handwriting expert or forensic laboratory

for review or testing. Although there is no rule in this circuit

that IJs must consult experts prior to rejecting documentary

evidence, in several cases in which IJs have made adverse

credibility findings based upon forged documents, those findings have been supported by evidence from experts. See, e.g.,

Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910 (9th Cir. 2004)

(INS submitted a report from its forensic document laboratory

stating that the medical certificate at issue was a forgery);

Zahedi, 222 F.3d at 1165 (IJ relied upon a letter from the INS

laboratory which stated that it could not authenticate a death

certificate). 

[4] Here, the IJ sought no support for his opinion that the

two “peculiar and unique” number fours were handwritten by

the same person, nor did the government proffer any expert

evidence to support that conclusion. Accordingly, the IJ’s

determination that Ram’s death certificate was forged was

fortified by no evidence other than his own visual handwriting

analysis, which as discussed above, was both uninformed and

inaccurate. The IJ’s conclusion, on this basis, that Ram’s

death certificate was a forgery was nothing more than conjecture unsupported by the evidence in the record. Thus, we are

compelled to reject it.1

1Were we to offer our own uninformed analysis after examining the various number fours at issue, we would not find any basis for concluding

840 KUMAR v. GONZALES
[5] The IJ’s finding that Ram’s death certificate was a forgery must be rejected on a second ground as well: the IJ failed

to provide Raj with the opportunity to explain the perceived

similarity between the numerals in the death certificate and

Rajinder’s asylum application. See Campos-Sanchez v. INS,

164 F.3d 448, 450 (9th Cir. 1999) (“[T]he BIA must provide

a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a

denial of asylum.”). In fact, the IJ was obliged not only to

allow Raj to explain the supposed similarity, but also to consider and address that explanation in his decision, which he

failed to do. 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 failure on the part of an IJ to allow a

petitioner the opportunity to respond to questions regarding

his credibility, particularly when such questions form the

basis for the denial of asylum, amounts to the denial of due

process. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661

(9th Cir. 2003). There can be no doubt that Raj’s due process

rights were violated here.2

B. Photographs 

The IJ also concluded, after comparing photographs in

Raj’s asylum application to those submitted in support of

Rajinder’s application, “that in fact, some of the alleged injuthat they were written by the same person, let alone sufficient basis to conclude with the requisite degree of certitude that they were. However, our

uninformed visual analysis is of no greater probative value than the IJ’s,

and we give it no import here. 

2The brief that Raj submitted to the BIA explains that he was given no

opportunity to respond to the IJ’s speculation of forgery and requests a

“remand[ ] to permit forensic examination of the allege[d] forgery . . . .”

In a case such as this, where more objective proof might be easily

obtained, Raj ought to have been given — as he stated to the BIA — an

opportunity to respond. 

KUMAR v. GONZALES 841
ries and photos about them were actually photos of respondent’s brother, and not his at all.” The IJ found that Raj’s

attempt to “pass off” his brother’s injuries as his own was

“consistent with [his] attempts to deceive this Court about the

veracity of his claim to asylum.” 

During Rajinder’s testimony, he acknowledged that several

of the photographs that were included in both his and his

brother’s asylum applications depicted injuries suffered by

Raj. Rajinder explained that his application, as well as Raj’s,

was prepared by Singh, and that it was possible that Singh had

inadvertently attached photographs to his application that

were meant to support only Raj’s. There was one photograph

(not “some”), however, that was included in Raj’s asylum

application that showed injuries to Rajinder’s foot. In

Rajinder’s asylum application, that photograph was labeled

“my foot,” whereas it contained no such label in Raj’s application. This appears to be the only photograph in Raj’s asylum application that depicts an injury suffered by Rajinder. 

In Rajinder’s file, in fact, the other photographs were

labeled as depicting Raj’s injuries, presumably because corroboration of injuries to both brothers was relevant to the

events recounted by Rajinder in his application (events nearly

identical to those described in Raj’s application). The inclusion of a single photograph of Rajinder’s foot injury in Raj’s

set of photographs submitted to the INS is consistent with this

notion. Raj did not, in his testimony or on the photographs

themselves, specifically identify the foot in the picture as his

own, although he did so identify one other photograph. Thus,

any clerical error in the assembly of Raj’s application and

supporting evidence resulted almost surely from a careless

failure by Singh to mark the photographs accurately, not from

an attempt to pass off a single, inconsequential injury of

Rajinder’s as having been incurred by Raj.3 There is no reason

3We note that Singh prepared Raj’s asylum application in English,

which Raj does not speak. Thus, Raj likely did not, because he could not,

842 KUMAR v. GONZALES
why the preparer would have labeled the photographs in

Rajinder’s file accurately but purposely failed to label similarly the same photographs in Raj’s file, particularly as most

of the photographs in Raj’s file were of his own injuries and

those injuries were the more serious. 

[6] Among the extensive evidence submitted in support of

Raj’s asylum application, including evidence of serious injuries suffered by Raj such as a torn muscle that required surgery and crushed fingers, the discrepancy created by a single

unlabeled photograph depicting a minor injury to Rajinder’s

foot is in question. Discrepancies such as the one presented

here that are capable of being attributed to clerical errors may

not form the basis of an adverse credibility finding “unless the

IJ or the BIA specifically explains the significance of the discrepancy or points to the petitioner’s obvious evasiveness

when asked about it.” Shah v. INS, 220 F.3d 1062, 1068 (9th

Cir. 2000). Neither condition is satisfied in this case. The IJ

did not explain his reason for rejecting a clerical explanation

for the failure to label the photographs properly, as was done

in Rajinder’s application. Nor was the petitioner asked for an

explanation, so he was not “evasive” in responding. We conclude, therefore, that the IJ’s determination that Raj attempted

to “pass off” his brother’s injuries as his own is not supported

by substantial evidence. Thus, we are compelled to reject this

ground for the IJ’s credibility finding as well.

C. Contact with Rajinder 

The IJ stated in his decision that “[i]t is also inconsistent

with credibility for the respondent to lead this Court to

believe, his brother and the respondent made their way to the

United States and then separated.” The IJ’s only support for

review his application before it was submitted. We note also that Raj’s

application contains numerous spelling and grammatical errors, which

suggest that Singh was generally careless in preparing Raj’s application or

was otherwise unqualified or incompetent. 

KUMAR v. GONZALES 843
this finding was his opinion that it was “unusual” for Raj not

to know the whereabouts of Rajinder after they had grown up

and fled India together. 

In Shah, this circuit ruled that an IJ had improperly discounted a petitioner’s credibility on the basis of his disbelief

that the petitioner and her husband had not received more correspondence than they had submitted from a certain political

party for whom the husband had worked for ten years. 220

F.3d at 1071. The Shah court ruled that such disbelief

amounted merely to speculation and conjecture. Id. In LopezReyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996), the IJ found

“astonishing” the petitioner’s contention that he had not been

killed by guerillas after being chased, shot at and beaten. In

that case as well, the court rejected the IJ’s finding, ruling that

the conclusion was not based upon a cogent reason, but rather

upon “personal conjecture about what guerillas likely would

and would not do.” Id. 

Similarly here, the IJ’s adverse credibility determination,

insofar as it was based upon his opinion regarding what brothers from India who had grown up and fled India together

might or might not do, was purely conjecture. Further, an

examination of the record reveals that Raj’s testimony regarding his knowledge of the whereabouts of his brother was not

at all “unusual.” Raj testified at his May 25, 2000, hearing

that Rajinder was working with a trucking company somewhere in California and was not easily reachable, that he had

seen him “three or four months ago,” and that he had not

attempted to contact Rajinder prior to the hearing because “I

did not know that he would also be needed here.” Later in the

hearing, the IJ scheduled a status conference for June 9 and

directed Raj to locate his brother prior to that date. At the

June 9 hearing, Raj’s counsel informed the IJ that Raj had

located Rajinder and that he would be able to appear as a witness in Raj’s case. 

[7] As was the case in Lopez-Reyes, the IJ’s finding that it

was “unusual” that Raj did not know where Rajinder was as

844 KUMAR v. GONZALES
of the date of the May, 2000, hearing was impermissibly

based upon personal conjecture rather than supportable,

cogent reasoning.

D. Purported Inconsistencies Between Allegations and

Country Reports 

Last, the IJ’s determinations that Raj’s substantive claims

were inconsistent with the factual findings in the Indian country reports and were implausible are not supported by substantial evidence. 

[8] With respect to the IJ’s finding that Raj’s narrative was

inconsistent with the Indian country reports, the IJ stated in

his decision that there was no support in the country reports

for Raj’s claims (1) that the local police in Jammu and Kashmir asked him, a civilian, for the whereabouts of Shah, a suspected terrorist, and then compelled him to accompany them

to Shah’s home, and (2) that the police later arrested him

based upon Shah’s statement that Raj was involved in terrorist

activities. A review of the Indian country reports submitted

into evidence in this case compels us to conclude that the IJ’s

findings regarding country conditions are not only unsupported by substantial evidence, they are clearly erroneous.

Although the Indian country reports do not detail identical

incidents to those described by Raj in his sworn affidavit, they

do warn of “deficient police methods” and violent police suppressions of Muslim separatist movements. In Jammu and

Kashmir, the tensions between local authorities and the terrorist elements are so severe, local government security forces

have regularly “killed suspected militants and civilians; with

few exceptions, they acted with impunity.” Further, the

authorities act in this regard with “judicial tolerance of the

Government’s heavy-handed antimilitant tactics.” 

Second, Raj’s account of the events of January 6, 1998, is

not implausible, and it is certainly not a basis for finding his

testimony not credible. Raj testified that his family owned a

KUMAR v. GONZALES 845
tailoring shop in his village, and that he often would deliver

finished garments to his customers’ homes. Shah’s home was

in very close proximity to the Kumar shop and, although Raj

had never personally delivered anything to Shah, Shah was a

customer and Raj knew where Shah’s house was because he

regularly “used to pass by that way.” Raj also testified that the

officers who accosted him came from the local police station,

which was three to four miles away from his family’s shop

and the Shah residence. It would not be implausible for police

officers to drive three to four miles from their headquarters

into a remote neighborhood looking for a suspected terrorist,

and then to ask an individual from that neighborhood where

the suspected terrorist lived. The IJ’s opinion, unsupported by

any evidence, as to what local police in Jammu and Kashmir

might or might not do in their efforts to find a suspected criminal is based upon speculation and conjecture. Lopez-Reyes,

79 F.3d at 912. 

[9] Thus, Raj’s account of the police officers’ treatment of

him during the early morning of January 6, 1998, and his

statements regarding his subsequent arrest and beatings are

both consistent with the Indian country reports cited by the IJ

and are plausible. The IJ’s findings to the contrary, like the

other factual findings underlying his adverse credibility determination, are not supported by substantial evidence. 

In view of the above, Raj’s testimony must be deemed credible.4

II. Nexus Between Persecution and Protected Ground 

In addition to holding that Raj was not credible, the IJ ruled

in the alternative that he had failed to establish past persecution on the basis of a qualifying protected ground. The IJ’s

4When our dissenting colleague quotes eleven separate statements from

dissenting opinions, mainly his own, it is not difficult to determine that the

law is not on his side. 

846 KUMAR v. GONZALES
ruling relied upon his finding that Raj was a law-abiding citizen with no political contact or affiliation with any terrorist or

militant organization, and thus was not persecuted based upon

any political opinion or association. 

[10] It is settled law that an applicant may establish a political opinion for purposes of asylum relief by showing an “imputed political opinion.” See Sangha v. INS, 103 F.3d 1482,

1489 (9th Cir. 1997). And, we have repeatedly held that an

applicant can establish imputed political opinion based upon

the persecutor’s erroneous belief as to the applicant’s political

affiliation or opinion. See, e.g., Singh v. Ilchert, 63 F.3d 1501,

1508-9 (9th Cir. 1995) (finding an imputed political opinion

where Indian police officers persecuted the petitioner based

upon a false belief that he was affiliated with Sikh militants);

Blanco-Lopez v. INS, 858 F.2d 531, 533-34 (9th Cir. 1988).

[11] Here, the evidence in the record shows that Raj

endured a month-long detention and serious physical abuse as

a result of the Jammu and Kashmir police’s mistaken belief

that Raj was associated with a Muslim terrorist group. The

fundamental fact relied upon by the IJ in ruling that Raj had

failed to establish a nexus between persecution and a protected ground — that Raj was not in fact a member of a terrorist organization — is irrelevant to the imputed political

opinion analysis. Rather, “the focus of inquiry turns away

from the views of the victim to the views of the persecutor

. . . . If the persecutor attributed a political opinion to the victim, and acted upon the attribution, this imputed view

becomes the applicant’s political opinion as required under

the Act.” Sangha, 103 F.3d at 1489 (citation omitted). The

facts in this case are substantively indistinguishable from

those in Singh and Sangha; the evidence is clear that Raj was

detained and physically assaulted on the basis of a political

opinion imputed to him. Thus, we must reject the IJ’s finding

that Raj did not establish a nexus between his past persecution

and a protected ground; the record compels us to rule that Raj

KUMAR v. GONZALES 847
has suffered persecution on the basis of an imputed political

opinion.

III. Reasonable Fear of Future Persecution 

The IJ also ruled that Raj had failed to establish a reasonable fear of future persecution. The IJ found, solely based

upon evidence showing that Raj’s parents had not been

harmed since he fled the country, that Raj’s fear of persecution by local law authorities in Jammu and Kashmir was

“speculative.” 

[12] In order to establish a reasonable fear of future persecution, an applicant must show that his fear of persecution is

both subjectively genuine and objectively reasonable. Hoxha

v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2002). An applicant

can satisfy the subjective component of the two-part test by

credibly testifying that he genuinely fears persecution.

Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). He

can satisfy the objective by “showing [ ] credible, direct, and

specific evidence in the record, of facts that would support a

reasonable fear of persecution.” Ghaly v. INS, 58 F.3d 1425,

1428 (9th Cir. 1995) (citation and quotation marks omitted).

That fear “must be based on an individualized rather than generalized risk of persecution.” Hoxha, 319 F.3d at 1182. 

[13] Because we find that Raj is credible, and because he

has testified that he believes that the local police in Jammu

and Kashmir will kill him if he returns to India (a belief that

is supported by the letter from his parents so stating), he has

satisfied the subjective component of the well-founded fear

test. 

[14] Further, Raj has also satisfied the objective reasonableness component of the test. According to the Indian country reports, local security forces in Jammu and Kashmir

attempting to combat insurgent elements regularly use excessive force, including torture and rape, when dealing with

848 KUMAR v. GONZALES
civilians, and they summarily kill suspected terrorists “with

impunity,” including those already in police custody. Raj’s

fear of such persecution is certainly based upon individualized

risk — the police’s erroneous belief that he was a terrorist

caused him to be subjected to a month-long detention that

included severe physical attacks and threats to his life. We

may consider the reasonableness of Raj’s fear “in the political, social, and cultural milieu of the place where [he] lived,

and even a ten percent chance of persecution may establish a

well-founded fear.” Khup v. Ashcroft, 376 F.3d 898, 904 (9th

Cir. 2004) (citations and quotation marks omitted). Here, the

acute social and political tensions in Jammu and Kashmir

considered together with Raj’s prior experience as the victim

of police violence and the letter from his parents stating that

local security forces have threatened to kill him if he returns

to India require a finding that he has met his burden of showing a well-founded fear of future persecution. 

The fact that Raj’s parents have not been harmed in his

absence does not compel a different result. This court did hold

in Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001), that

“[a]n applicant’s claim of persecution upon return is weakened, even undercut, when similarly-situated family members

continue to live in the country without incident.” However,

the facts in Hakeem are entirely distinguishable from those in

this case; critically, the family members at issue in Hakeem

were in fact “similarly situated,” whereas here they are not. In

Hakeem, the petitioner asserted that he would be killed upon

returning to Pakistan because, according to the law as decreed

in the Koran, an individual who changes his religion, as the

petitioner had done, is automatically sentenced to death. 273

F.3d at 817. The court rejected Hakeem’s claim, in part

because several members of his family who had remained in

Pakistan and had also changed their religion had not been persecuted. Id.

[15] Here, there is no evidence that the police in Jammu

and Kashmir suspect Raj’s parents of associating with the

KUMAR v. GONZALES 849
same Muslim separatist faction to which they accuse Raj of

belonging. In other words, the political opinion that the Indian

police have imputed to Raj and which forms the basis of Raj’s

past persecution has not been imputed to Raj’s parents; thus,

they are not “similarly situated,” and it is irrelevant that they

have not suffered from the treatment that Raj fears. 

[16] The IJ’s finding that Raj failed to establish a wellfounded fear of future persecution is not supported by substantial evidence.

IV. Withholding of Removal 

The IJ’s denial of Raj’s application for withholding of

removal relied exclusively upon his ruling denying Raj’s asylum application. However, we have reversed the IJ’s adverse

credibility finding and rejected his rulings that Raj failed to

establish (1) past persecution on the basis of a protected

ground and (2) a reasonable fear of future persecution. 

Because the IJ failed to consider Raj’s claim for withholding of removal on its merits, we remand that claim to the BIA

so that it may now consider it in light of our holdings herein.

V. Relief Under CAT 

The IJ ruled that Raj was not entitled to relief under CAT

because, inter alia, the harm that he claimed to have suffered

in the Jammu and Kashmir police station did not rise to the

level of torture as defined under the statute. 

Although Raj undeniably suffered abuse in the Jammu and

Kashmir police station, we are unable to conclude that the IJ’s

ruling that it did not amount to torture was not supported by

substantial evidence. See Gui v. INS, 280 F.3d 1217, 1230

(9th Cir. 2002). Thus, we affirm the BIA’s determination that

Raj is not entitled to relief under CAT.

850 KUMAR v. GONZALES
VI. Motion to Reopen 

Because Raj’s appellate brief does not address the BIA’s

denial of his motion to reopen, we consider argument on that

issue waived. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.

1998) (“[W]e will not ordinarily consider matters on appeal

that are not specifically and distinctly argued in appellant’s

opening brief.”) (citation and quotation marks omitted). 

CONCLUSION

[17] We reverse the IJ’s adverse credibility finding and

hold that Raj has demonstrated both past persecution on

account of an imputed political opinion and a well-grounded

fear of future persecution. Accordingly, we find Raj statutorily eligible for asylum, and we remand for an exercise of

discretion on his asylum claim and for further consideration

of his withholding of removal claim. We affirm the BIA’s

denial of Raj’s application for relief under CAT. We deny

Raj’s petition for review of the BIA’s denial of his motion to

reopen. 

Petition for review is GRANTED in part, DENIED in part,

and REMANDED for further proceedings.

KOZINSKI, Circuit Judge, dissenting in part: 

My colleagues grumble that an immigration judge

shouldn’t pretend to be a “handwriting expert” or a “forensic

laboratory.” Maj. at 840. But a circuit judge shouldn’t pretend

to be an immigration judge. This is yet another tiresome “example of the nitpicking we engage in as part of a systematic

effort to dismantle the reasons immigration judges give for

their decisions.” Abovian v. INS, 257 F.3d 971, 980 (9th Cir.

2001) (Kozinski, J., dissenting from denial of rehearing en

banc) (listing other examples). 

KUMAR v. GONZALES 851
1. After hearing the testimony of Raj Kumar and his

brother Rajinder, the immigration judge (IJ) found as follows:

This Court is of the opinion that [Raj Kumar] submitted fraudulent documents to bolster his claim to

asylum. 

. . . . 

As seen in collective Exhibit 4, [Raj] attempted to

pass off as his own injuries, the photos submitted as

part of this Exhibit. . . . [I]n fact, some of the alleged

injuries and photos about them were actually photos

of [Raj’s] brother, and not his at all. This attempt to

pass off as his own injuries, is consistent with [Raj’s]

attempts to deceive this Court about the veracity of

his claim to asylum. 

Based on this finding of immigration fraud and other inconsistencies in Raj’s testimony and evidence, the IJ made an

adverse credibility determination and, not believing Raj’s

story, denied his claim for asylum. 

Both Congress and the Supreme Court have instructed that

an adverse credibility finding is “conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. EliasZacarias, 502 U.S. 478, 481 & n.1 (1992). Our role is not to

substitute our own judgment regarding an asylum applicant’s

credibility for that of the IJ; for us to overturn an IJ’s adverse

credibility finding, the applicant must present evidence that

not only supports a finding of credibility, “but compels it.” Id.

at 481 n.1; Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003). And, when an IJ compiles multiple reasons for disbelieving the applicant, we must accept the IJ’s finding even if

only one reason that goes to the heart of the applicant’s claim

is supported by substantial evidence. See Li v. Ashcroft, 378

F.3d 959, 964 (9th Cir. 2004). The majority dutifully recites

852 KUMAR v. GONZALES
this standard of review, see maj. at 838-39, but its analysis

belies the deference an IJ is due. See Quan v. Gonzales, 428

F.3d 883, 890 (9th Cir. 2005) (O’Scannlain, J., dissenting)

(“[T]he court has substituted its independent analysis of the

record for that of the Immigration Judge . . . and, in so doing,

has exceeded its authority and intruded upon the proper role

of the fact finder.”); Jahed v. INS, 356 F.3d 991, 1002 (9th

Cir. 2004) (Kozinski, J., dissenting) (“[O]ur court seems bent

on denying the BIA the deference a reviewing court owes an

administrative agency.”). 

The heart of Raj Kumar’s asylum application is his claim

that he suffered repeated beatings and sustained multiple injuries at the hands of Indian police. To support his contentions,

Raj submitted, along with his asylum application, photographs allegedly depicting his injuries. He also presented

these photographs as evidence in his hearing before the IJ.

Further, after some prodding by the IJ, he presented his

brother Rajinder—who had filed his own asylum application,

with photographs—to corroborate his claim. 

It is undisputed that four of the five photographs Raj submitted were identical to the photographs Rajinder had submitted in his own asylum application. The IJ did not need to

engage in “speculation or conjecture,” maj. at 839, to see that

the photos are the same; he needed only compare the two sets

of photos in the record. And although we don’t know which

brother’s photos were actually depictions of the other brother’s injuries—or whether either set of photos depicted neither

brother at all—we do know that both sets of photos could not

be what the Kumar brothers claimed them to be. 

The majority concedes that at least one of the photographs

in Raj’s application “depicts an injury suffered by Rajinder.”

Maj. at 842. And it does not dispute that the injuries Raj

claims to have suffered at the hands of the Indian police are

the “heart” of his asylum application. This alone is substantial

evidence supporting the IJ’s findings. See Li, 378 F.3d at 962

KUMAR v. GONZALES 853
(“An adverse credibility ruling will be upheld so long as identified inconsistencies go to the heart of the asylum claim.”

(alteration and internal quotation marks omitted)). Cf. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.

2003) (“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.”). 

Yet the majority concludes, inexplicably, that Raj did not

“attempt[ ] to ‘pass off’ his brother’s injuries as his own.”

Maj. at 843. It then proceeds to engage in its own “speculation and conjecture” about how the photograph of Rajinder’s

injury might have found its way into Raj’s asylum application, and been submitted as evidence during the course of

Raj’s removal hearings: There might very well have been a

good explanation; it’s possible it was the result of carelessness; it could have been a clerical error. See id. at 842-43.

Were the members of the majority sitting as immigration

judges, these hypothetical excuses might have given them a

basis for concluding that Raj’s testimony was believable. But

they do nothing to undermine the uncontroverted evidence

that Raj submitted at least one photo of his brother’s injuries

and claimed it as his own, and they certainly do not render

irrational the IJ’s conclusion that the phony photograph was

part and parcel of a pattern of deception. 

Raj had plenty of opportunities to explain why the same

photographs appeared in both applications. He could have

offered an explanation when he submitted the photographs

into evidence at the hearing, or when he described his injuries

on direct examination. Further, when the duplicative photographs were brought to the IJ’s attention during brother

Rajinder’s testimony, Raj and his attorney were put on notice

of the cause for concern: 

[INS ATTORNEY] TO RAJINDER KUMAR 

854 KUMAR v. GONZALES
Q: Sir, would you look at Exhibit 6, see if you recognize that document? 

A: Yes. 

Q: What is that document? 

A: That is my, I, I’m the one who filled this out. 

Q: It’s an application for asylum? 

A: Yes. 

Q: And would you look at the photographs. Do you

recognize that photograph? 

A: Yes. 

Q: And who is that of? 

A: This is of my foot. 

Q: And would you identify this, second photograph?

A: Yes. 

Q: What is it? 

A: That’s my brother’s— 

Q: Your brother’s what? 

A: The stitches on his (indiscernible). 

Q: And a third photograph, would you identify that?

A: That’s also my brothers. 

KUMAR v. GONZALES 855
Q: Why are you putting your brother’s photographs

in your file? 

A: I did not, maybe it was by mistake. I did not do

it myself. 

. . . . 

Q: Sir, I’m showing you a photograph of a foot, in

your brother’s file. Would you identify the photograph? 

A: Yes. That’s my foot. 

Q: You know why your photographs are in your

brother’s file?

A: I give this, give this to a person named

Mohamed. And he put everything, maybe it was mistake or something. 

Despite hearing this exchange with his brother, Raj offered

no explanation for the discrepancies, and did nothing to confirm Rajinder’s conjecture that “maybe it was [a] mistake or

something.” Raj’s attorney redirected Rajinder for almost an

hour, but avoided any mention of the photographs. The IJ then

granted Raj a continuance so his attorney could further review

Rajinder’s documents; when the hearing reconvened a month

later, Raj’s attorney stated that Rajinder’s testimony had been

“sufficient,” and that he didn’t need to ask any more questions. Finally, when asked whether Raj wanted to present

“anything further [in] the case in chief,” Raj’s attorney

responded, “No, Your Honor,” and waived closing argument.

After the IJ made his adverse credibility determination, Raj

had a further opportunity to address this issue in his appeal to

the BIA. Yet in his brief to the BIA, Raj did not argue that

the photographs were erroneously included in the wrong

856 KUMAR v. GONZALES
application, or that he was unaware of the inclusion of his

brother’s photographs in his asylum application. Instead, he

made only a single unilluminating remark in the “Facts” section of the brief: His immigration consultant “put all the photos of the injuries the two brothers suffered into each

application without distinguishing them.” Raj doesn’t claim,

even in his brief, that he was unaware his brother’s injury was

being passed off as his own. 

The majority seizes on the single unsworn sentence in Raj’s

brief to the BIA, giving it more weight than eleven separate

sworn hearings in front of the IJ. The majority even blames

the IJ for failing to ask Raj for an explanation, as if his own

counsel was a potted plant. Maj. at 843-44. Finally, the majority invents its own version of what must have happened, spinning tales of mea culpas, accidents, and “clerical error[s]” that

appear nowhere in the record. See id. at 842. It’s no wonder

Raj didn’t bother to explain the inconsistencies to the IJ; he

must have predicted—accurately, as it turns out—that the

Ninth Circuit would do it all for him. 

2. The majority next holds that “the IJ’s finding that it was

‘unusual’ that Raj did not know where Rajinder was as of the

date of the May, 2000, hearing was impermissibly based upon

personal conjecture rather than supportable, cogent reasoning.” Id. at 844-45. For support, the majority points out that

“Rajinder was working with a trucking company . . . and was

not easily reachable,” and recounts Raj’s seemingly reasonable testimony that he “did not know that [Rajinder] would

also be needed” at the hearing. Id. at 844. 

But the majority paints an incomplete picture, and mischaracterizes the IJ’s findings. The IJ didn’t find it implausible that a long-distance trucker might be difficult to reach; he

found implausible Raj’s claim that he had no way of contacting Rajinder: “[Raj] was asked a series of questions about his

brother and his whereabouts, and his claim to asylum. Basically, [Raj] testified he did not know where his brother was,

KUMAR v. GONZALES 857
nor where he lived or for that matter, his home telephone

number.” Even long-distance truckers have homes and telephone numbers, and it’s highly implausible that the two brothers, who escaped torture and traveled thousands of miles

together to get to the United States, would then have separated without giving each other any contact information. 

The IJ’s skepticism about Raj’s claim that Rajinder was

untraceable proved well-founded: When the IJ gave Raj only

15 days to locate his brother and bring him to testify, Rajinder

magically materialized.1 Once Rajinder showed up at the

hearing, the INS was able to secure his consent so the IJ could

compare Rajinder’s asylum application to Raj’s. As the IJ

stated:

The reason [Raj’s] testimony about his brother [is]

salient to his claim, is that [Raj led] this Court to

believe he was separate and distinct from his brother,

and that they were on their own. Only after

[Rajinder’s asylum application] was entered into the

record does it show up that both claims were prepared by the same individual . . . . Only after the

brother’s application was presented, did it come to

light the photos in one, were used in both. And that

some of the alleged injuries to Raj were actually,

allegedly Rajinder’s. . . . That may explain why

[Raj] was not inclined to tell this Court, candidly,

about the fact that both applications (his and his

brother’s) were prepared by the same person. These

1After Raj told the IJ that he didn’t know where Rajinder was, and

hadn’t asked Rajinder to testify, the IJ said, “Sir, you want me to believe,

that the same brother who was detained, beaten, threatened is in the United

States, and you didn’t know that he would be a helpful witness to you. Is

that w[hat] you want me to believe? . . . Well, sir, I just don’t understand

a percipient witness, who had the same problems, in the same family, and

he’s not produced in the case in chief. Very difficult for me to understand,

sir.” The IJ then continued the hearing to “allow [Raj] time to find [his]

brother.” 

858 KUMAR v. GONZALES
discoveries also help explain why the respondent did

not want this Court to scrutinize both applications

together. 

In other words, Raj had claimed he and Rajinder had separated after they got to the United States. He did this in order

to explain why Rajinder—who could obviously corroborate

Raj’s story—was absent from Raj’s asylum hearing. When

the IJ refused to buy Raj’s explanation, Rajinder showed up

and his presence enabled the IJ to compare the two applications side-by-side. It was only at that point that the IJ was able

to see that the same photographs were being offered as evidence in multiple asylum applications, and that the two applications were drawn up by the same individual, on the same

day, putting the lie to Raj’s claim that he and his brother had

gone their separate ways after coming to America. 

This is the nub of the IJ’s reasoning, which the majority

ignores, preferring to nitpick the IJ’s isolated statements. But

the duplicitous photographs and the alleged inability to locate

Rajinder were not disconnected; they were part and parcel of

a single fraud that a factfinder, who sees the lie unfolding

before his very eyes, is uniquely qualified to identify. Having

seen that (1) Raj claimed to be unable to locate his brother,

(2) Raj was indeed able to locate Rajinder within 15 days, and

(3) Rajinder’s testimony revealed their deception, the IJ concluded that Raj had intentionally been trying to avoid producing his brother. Far from being “speculation and conjecture,”

this was a permissible inference for the IJ to draw based on

“supportable, cogent reasoning.” And it strongly supports the

IJ’s finding that inclusion of the false photographs was no

mistake but a calculated fraud. 

3. Even the majority’s analysis of the “Purported Forgery

of Ram’s Death Certificate,” maj. at 839-41, is nothing more

than a transparent effort to “impos[e] ever more stringent

standards on how [IJs and the BIA] must perform their functions.” Abovian, 257 F.3d at 971. The IJ may not have had a

KUMAR v. GONZALES 859
lot of evidence to buttress his conclusion that the death certificate was a forgery, but—certainly in light of the other deceptions being perpetrated by Raj and Rajinder—the majority has

pointed to nothing that would compel a contrary conclusion.

See Elias-Zacarias, 502 U.S. at 481 n.1; Farah, 348 F.3d at

1156. Instead, the majority simply announces that an “uninformed visual” inspection of the document by the IJ was

insufficient. Maj. at 839. Although the majority disclaims any

“rule in this circuit that IJs must consult experts prior to

rejecting documentary evidence,” id. at 840, that is precisely

what the majority requires; without such an expert’s opinion,

the IJs determination will simply be written off as “conjecture,” id. at 840. This addition to the already-crushing burden

with which our court has saddled IJs is unsupported by law

or precedent. 

4. Finally, not content merely with finding the adverse

credibility determination unsupported by substantial evidence,

the majority goes on to conclude that the IJ’s “fail[ure] to provide Raj with the opportunity to explain” the discrepancies in

his application “amounts to the denial of due process.” Maj.

at 841. Raj does not allege a due process violation in his petition for review, and the majority’s unprompted decision to

find one is unsupported by our caselaw; it is just another

effort to “whittle away the authority and discretion of immigrations judges and the BIA.” Jahed, 356 F.3d at 1007 (quoting Abovian, 257 F.3d at 971) (internal quotation marks

omitted). 

We have previously held that adverse credibility determinations amount to due process violations in two situations, both

relating to the BIA’s appellate review of an IJ’s decision. The

first occurs when the IJ finds an applicant credible, but the

BIA makes an adverse credibility determination on review.2

2

I have already lodged my disagreement with this nonsensical definition

of due process: “[W]hat kind of unfairness can there be when the BIA uses

the petitioner’s own words against him?” Abovian, 257 F.3d at 972-73.

860 KUMAR v. GONZALES
In that situation, the BIA violates the applicant’s due process

rights if it does not give him advance notice that his credibility is at issue, and afford him an opportunity to explain the

perceived discrepancies. See Campos-Sanchez v. INS, 164

F.3d 448, 450 (9th Cir. 1999). Second, if the IJ makes no

explicit credibility finding at all, the BIA may not make an

independent adverse credibility determination without giving

the applicant notice and an opportunity to be heard. See Mendoza Manimbao, 329 F.3d 655, 662 (9th Cir. 2003); Abovian

v. INS, 219 F.3d 972, 975, 980 (9th Cir.), amended by 228

F.3d 1127 and 234 F.3d 492 (2000), reh’g en banc denied by

257 F.3d 971 (2001). 

The supposed purpose of these holdings is to ensure that an

applicant has notice of the need to defend his credibility in

front of the BIA.3 When an asylum applicant is before the IJ,

however, he is already on notice that his credibility is at issue;

one of the primary purposes of an asylum hearing is to determine if the asylum seeker is credible. It is the applicant’s burden at the hearing to prove he should be believed. See 8

C.F.R. § 208.13(a) (burden of proof to establish eligibility for

asylum is on the applicant). The IJ has no special burden to

“provide [the applicant] the opportunity to explain” why he

should be deemed credible. Maj. at 841. That is the very reason the applicant is in front of the IJ in the first place—the

hearing is his opportunity. And, if at the conclusion of the

This is a “constitutional rule [that] exists nowhere outside the Ninth Circuit.” Id. at 972. Whereas I had at least taken solace in the fact that, “[i]f

the IJ had . . . chosen to disbelieve petitioner, he would have had no constitutional right to get back on the stand and patch up his story,” id. at 973

(emphasis added), this distinction is now out the window. Pretty soon,

every denial of asylum will amount to a denial of due process. 

3

In a third line of cases, we have held that when an IJ makes an adverse

credibility determination, and the BIA affirms but on different grounds,

due process is satisfied because the applicant was on notice that credibility

was an issue that would be before the BIA. See Pal v. INS, 204 F.3d 935,

938-39 (9th Cir. 2000). 

KUMAR v. GONZALES 861
hearing, the IJ deems the applicant incredible, the applicant—

now on notice that his credibility is in doubt—has the opportunity to appeal such a decision to the BIA.4

In fact, Raj did appeal the IJ’s decision regarding the death

certificate to the BIA, and the BIA upheld the IJ’s adverse

credibility determination anyway. Raj may not like the BIA’s

decision, but the sufficiency of the process Raj received is not

dependent on a favorable result. 

5. The larger problem with the majority’s opinion is its

know-it-all approach, an error oft repeated when our circuit

reviews immigration cases in which an IJ has made an

adverse credibility determination.5 First, the majority lays out

the applicant’s story as if it were the gospel truth, making it

seem like denial of rehearing will cause a huge miscarriage of

justice. Then the majority picks apart the IJ’s findings piece

by piece, scrutinizing his every sentence as if it is completely

unconnected to the rest of his opinion. Don’t agree with the

IJ that the applicant is lying? Not to worry; just label the IJ’s

finding “speculation and conjecture.” See maj. at 839, 840,

844, 844-45; Vera-Villegas v. INS, 330 F.3d 1222, 1231 (9th

4We have held that, if an applicant gives an explanation for inconsistencies in his testimony or his supporting evidence, and the IJ neglects to

address the explanation given, the IJ’s adverse credibility determination

should be reversed as unsupported by substantial evidence. See Kaur v.

Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004); Hakeem v. INS, 273 F.3d

812, 816 (9th Cir. 2001). But this is quite different from holding there is

a due process violation in such a situation. And it is different still from

requiring an IJ to specifically ask an applicant to provide an explanation

in the first place. 

5

I am not the first of our circuit’s judges to point this out; nor, I fear,

will I be the last. See, e.g., Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th

Cir. 2005) (O’Scannlain, J.) (“The Supreme Court has repeatedly

instructed us on the proper standard to apply when reviewing an immigration judge’s adverse credibility determination. Time and again, however,

we have promulgated rules that tend to obscure that clear standard and to

flummox immigration judges, who must contort what should be a simple

factual finding to satisfy our often irreconcilable precedents.”). 

862 KUMAR v. GONZALES
Cir. 2003). Finding it difficult to dispute that the applicant is

lying? No problem; just label the inconsistencies “minor,” or

“merely incidental to [the] asylum claim.” See Abovian, 257

F.3d at 979; id. at 978 (listing cases). Having trouble arguing

with a straight face that the applicant’s lie doesn’t go to the

heart of his claim? No need to fret; just announce a due process violation. See maj. at 841. The net effect is that any asylum applicant who is a skillful enough liar—and many who

aren’t—must be believed no matter how implausible or farfetched their story. See, e.g., Abovian, 219 F.3d at 982 (Wallace, J., dissenting) (applicant alleged “that at least fifteen

times in one year he was taken to a hotel room and asked in

person, by the president of [Armenia], to join the KGB”). It

also means that IJs, who are doubtless chary of being vilified

by august court of appeals judges, become even more reluctant to make adverse credibility findings, even when they

have good reason to believe the asylum applicant is lying. 

None of this bears any resemblance to administrative law,

and none of it finds support in the statutes Congress has given

us to apply, or the rules the Supreme Court has instructed us

to follow. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam); Elias-Zacarias, 502 U.S. at 481 & n.1. Although I

am bound to follow our circuit’s precedents, I cannot be

forced to like them, or to pretend that they represent the

proper fulfillment of our judicial role. 

I am dissenting in this case, rather than concurring, however, because even our insubordinate precedents do not support the absurd result the majority has reached. Asylum

claims are often difficult because “[t]he specific facts supporting a petitioner’s asylum claim—when, where, why and by

whom he was allegedly persecuted—are peculiarly within the

petitioner’s grasp. By definition, they will have happened at

some time in the past—often many years ago—in a land far,

far away.” Abovian, 257 F.3d at 976. This is not such a case.

The IJ’s adverse credibility finding here is based on fraud that

has taken place recently, here in the United States, as part of

KUMAR v. GONZALES 863
the asylum application process. The IJ caught the Kumar

brothers red-handed mocking the integrity of our immigration

procedures. Once the IJ found that they had committed immigration fraud, he had every right to disbelieve the aspects of

their story that did take place long ago and far away, as there

is nothing to corroborate that story beyond the Kumar brothers’ good word and some documents they produced. Our

jurisprudence instead allows asylum applicants to manufacture evidence, and forces IJs to swallow it. We do not treat

other trial judges with such disdain and disrespect, and there

is no justification for doing so when immigration judges are

involved. 

* * *

The IJ’s finding that Raj “attempted to pass off [his brother’s injuries] as his own injuries” is supported by substantial

evidence. Based on this finding alone, the IJ was justified in

making an adverse credibility determination and concluding

that “[f]raudulent documents are being used to support [Raj’s]

claim to asylum.” If this is not good enough to support an IJ’s

adverse credibility determination, then nothing short of the

applicant admitting “I’m a big fat liar” will do—and maybe

not even that. This is not the law, and I refuse to follow my

colleagues in making it so. Rather, I would uphold the IJ’s

adverse credibility determination, and deny Raj’s petition for

review. 

864 KUMAR v. GONZALES