FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIRMAL SINGH; KULWANT KAUR; 

SANJOT SINGH, No. 06-74547

Petitioners, Agency Nos.

v.  A072-172-796

ERIC H. HOLDER JR., Attorney A077-431-973

General, A077-431-974

Respondent. 

KULWANT KAUR; SANJOT SINGH,  No. 07-71289

Petitioners, Agency Nos.

v. A077-431-973  A077-431-974 ERIC H. HOLDER JR., Attorney

General, AMENDED

Respondent. OPINION 

On Petitions for Review of Orders of the

Board of Immigration Appeals

Submitted January 12, 2011*

San Francisco, California

Filed March 25, 2011

Amended June 8, 2011

*The panel unanimously concludes this case is suitable for decision

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

7473
Before: Alex Kozinski, Chief Judge, John T. Noonan and

Barry G. Silverman, Circuit Judges.

Opinion by Chief Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge Noonan

7474 SINGH v. HOLDER
COUNSEL

Sabey Abraham, Hardeep S. Rai and Rebecca Rudzianis, Rai

& Associates, P.C., San Francisco, California, for the petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division;

Gregory G. Katsas, Acting Assistant Attorney General, Civil

Division; Michelle G. Latour, Assistant Director, Lisa M.

Arnold, Senior Litigation Counsel, Luis E. Perez, Tracie N.

Jones and Schwanda Rountree, Of Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice,

Washington, D.C., for the respondent.

OPINION

KOZINSKI, Chief Judge:

We consider whether lying to the immigration authorities

is a sufficient basis for an adverse credibility finding, and

when a lie uttered by one spouse may fairly be attributed to

the other.

Facts

Nirmal Singh filed an asylum application soon after he

came to the United States in 1994. He claimed that he had

been persecuted in India because of his support for the Akali

Dal Mann Party. Singh testified that he was arrested and

severely beaten three times for his political activities, and that

7476 SINGH v. HOLDER
he believed the police murdered his brother for participating

in a political protest. The asylum officer disbelieved Singh

and referred his application to an immigration judge for adjudication in removal proceedings.

A few months later, Singh’s wife Kulwant Kaur flew to the

United States with their son. Singh picked them up at the airport and brought them to his home in San Jose. After they settled in, Kaur also applied for asylum. Someone apparently

advised her that she couldn’t be granted asylum if she said she

was living with her husband, so she lied on her application

form. She claimed that Singh was not in the United States and

that she had no information as to his whereabouts. She also

falsely indicated that Singh had never applied for asylum.

Kaur’s interview went better than Singh’s. She told the asylum officer that she had been arrested and raped because of

her political activities in India. She again lied under oath

about not knowing the whereabouts of her husband, and submitted an affidavit from Singh’s father also claiming that he

didn’t know where his son was. And, of course, Kaur didn’t

mention that Singh had been denied asylum. The asylum officer believed Kaur and granted her application.

This gave Singh a second bite at the apple. He told the

immigration judge in his own case that he planned to withdraw his asylum application. Rather than fighting the asylum

officer’s decision, Singh would join his wife’s successful

application. With Singh present in the courtroom, his lawyer

falsely assured the IJ that the couple had only recently found

each other here. Their cases were later consolidated.

But the government was suspicious, and the asylum officer

re-interviewed Kaur with her husband present. Comparing

Kaur’s story to Singh’s, the officer noted that Kaur hadn’t

previously mentioned that the police in India had murdered

her brother-in-law (Singh’s brother). Nor did the affidavit

Kaur submitted from her father-in-law mention that his own

SINGH v. HOLDER 7477
son had been killed. This omission was remarkable because

Singh had relied on the alleged killing to prove political persecution against his family. Kaur also gave conflicting dates

for when Singh supposedly joined the Akali Dal Mann Party,

and different details than her husband about whom he contacted before leaving India. And she continued to lie about

when she had found Singh in the United States. Singh was

present and spoke to the asylum officer, but said nothing to

contradict his wife. The government terminated Kaur’s asylum status, effective the day after the interview.

When petitioners both went before the immigration judge,

Kaur finally admitted that she had lied on her application and

twice lied to the asylum officer. The government pressed

Singh on his lawyer’s false representation that the couple had

only recently discovered one another in the United States.

Singh claimed he gave the lawyer accurate information about

their situation, but the lawyer lied to the court anyway. And

Kaur claimed the lawyer advised her to lie to the asylum officer. The IJ gave the couple an opportunity to call the lawyer,

but they declined. They have never argued that they received

ineffective assistance of counsel.

The IJ made an express adverse credibility finding against

both Kaur and Singh, and on that basis denied their claims for

relief. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th

Cir. 2003). Kaur later received an I-140 visa and requested

that the Board of Immigration Appeals reopen her case to

consider her application for adjustment of status. The BIA

denied the motion.

Analysis

Immigration judges are in the best position to evaluate the

credibility of an alien applying for relief. Mendoza Manimbao

v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003). We review

adverse credibility findings for substantial evidence, and must

uphold them unless the evidence compels a contrary result.

7478 SINGH v. HOLDER
Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048 (9th Cir.

2008).

I. Kaur (the wife)

[1] Kaur admits that she lied repeatedly to avoid being

denied relief, and to prevent her husband from being sent

back to India. We’ve seen this kind of behavior before, and

not with favor. In Kaur v. Gonzales, 418 F.3d 1061 (9th Cir.

2005), the asylum applicant “admitted in her testimony that

she lied about her marital status in order to ensure the possibility that her husband could file an asylum application in the

event hers was denied.” Id. at 1066. We held that intentional

deception toward the immigration authorities is “culpable

conduct” and one of several “indications of dishonesty” that

“cast[s] doubt on [the applicant]’s entire story.” Id. at

1066-67.

[2] Kaur argued to the BIA that the IJ erred by making an

adverse credibility finding based on nothing more than “trivial

errors” and “minor inconsistencies” that revealed nothing

about whether she reasonably feared returning to India. See

Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996). It’s true that

an adverse credibility finding must be based on more than an

innocent mistake, but “[t]he concern underlying each of our

decisions in this arena has been to avoid premising an adverse

credibility finding on an applicant’s failure to remember nonmaterial, trivial details . . . .” Kaur, 418 F.3d at 1064 (emphasis added); see also Marcos v. Gonzales, 410 F.3d 1112, 1117

(9th Cir. 2005) (explaining when “discrepancies” and “inconsistencies” count against applicant). An applicant will naturally be more likely to remember and relate the facts that are

important to his claim. The IJ therefore shouldn’t infer from

an applicant’s careless error about peripheral details that he’s

lying about the facts that do matter.

[3] But the rule is quite different when it comes to deliberate deception. See Liu v. Holder, No. 08-72849, 2011 WL

SINGH v. HOLDER 7479
635276, at *6 (9th Cir. Feb. 23, 2011) (distinguishing deliberate fabrications from omissions, inconsistencies and discrepancies). An asylum applicant who lies to immigration

authorities casts doubt on his credibility and the rest of his

story. There are strictly limited instances when we overlook

an alien’s decision to mislead immigration officials: In Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999), we recognized that

“a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of

persecution or secure entry into the United States.” Id. at 955;

see also Marcos, 410 F.3d at 1117-18 & n.4. That kind of lie

can’t count against him. But the deception here was completely unrelated to escaping immediate danger or gaining

entry into the United States. Kaur admits that she made a conscious decision to lie to the asylum office about a fact she

believed was crucial to her claim for permanent relief. It

doesn’t matter that the fact turned out to be irrelevant. What

matters is that the petitioner chose to lie to immigration

authorities. That always counts as substantial evidence supporting an adverse credibility finding, unless the lie falls

within the narrow Akinmade exception.

[4] For similar reasons, the BIA did not abuse its discretion

in denying Kaur’s motion to reopen for adjustment of status.

See INS v. Abudu, 485 U.S. 94, 105 (1988). It reasonably concluded that Kaur’s “history of misrepresentations . . . is a serious adverse factor that is not outweighed by her positive

equities.”

II. Singh (the husband)

Singh tried to piggyback on his wife’s deception. His lawyer told the same fairy tale about how husband and wife had

lost track of each other and then met by accident in the United

States. Singh claims he didn’t know what his lawyer was saying, but he was present and understands English. The IJ didn’t

have to believe Singh. See Rivera v. Mukasey, 508 F.3d 1271,

1275 (9th Cir. 2007). Instead, she could reasonably infer that

7480 SINGH v. HOLDER
Singh heard and understood what his lawyer said, and

remained silent because he had given the lawyer the false

information or was content to have the lawyer lie on his

behalf.

[5] Singh again said nothing when his wife lied during her

second interview with the asylum officer. Nor did he contradict her false testimony when the asylum officer questioned

him. Singh blamed antidepressant medication, but the IJ

didn’t have to buy this excuse either. Singh and Kaur are husband and wife, living under the same roof; they had a common interest in the success of Kaur’s asylum application: If

Kaur could retain her favorable asylum ruling, they would

both be able to remain in the United States. See 8 U.S.C.

§ 1158(b)(3); 8 C.F.R. § 1208.21. There are some circumstances in which it would be unreasonable for an IJ to discredit an applicant for failing to correct his wife’s lies. For

example, it would be unfair if the applicant didn’t know his

wife was lying, had no opportunity to speak or was pressured

into keeping his mouth shut. But there was no evidence that

anything like that had happened here. The IJ could therefore

reasonably infer that the couple had discussed the asylum reinterview ahead of time and jointly decided to stick with

Kaur’s false story rather than come clean. Singh claims he

can’t be held responsible for Kaur’s lies because the asylum

officer didn’t ask him whether he agreed with his wife’s

account, but “[t]he maxim of the law is ‘Silence gives consent.’ ” Robert Bolt, A Man for All Seasons 152 (Vintage

Books 1990) (stage direction omitted); cf. United States v.

Schaff, 948 F.2d 501, 505 (9th Cir. 1991) (discussing adoptive

admissions). It doesn’t matter which spouse told the lie and

which one tacitly assented: The IJ reasonably concluded that

Kaur and Singh were executing a common plan to deceive the

asylum officer, and reasonably disbelieved both of them.

* * *

[6] By necessity, much of the immigration system depends

on aliens telling the truth when they seek relief. When appliSINGH v. HOLDER 7481
cants deliberately lie, as Singh and Kaur did here, that trust

is broken and it’s entirely reasonable for the immigration

authorities to disbelieve their stories and deny their claims.

The REAL ID Act has given immigration judges even broader

discretion in making their credibility determinations, but

they’ve always been permitted to use their common sense. See

Kaur, 418 F.3d at 1066. Discovering that Kaur and Singh

knowingly deceived our government for years was a perfectly

good reason not to believe their testimony, and we cannot

conclude that the evidence compels a contrary finding.

PETITIONS FOR REVIEW DENIED.

NOONAN, Circuit Judge, concurring in part and dissenting in

part:

I concur in the majority’s denial of Kulwant Kaur’s petition. Kaur admitted to the Immigration Judge that she lied. It

is often impossible for asylum seekers to obtain documentary

evidence. The integrity of our asylum system depends on asylum seekers’ truthfulness. It is not an abuse of discretion for

the Board of Immigration Appeals to refuse to reopen Kaur’s

case.

I do not join in the majority’s denial of Nirmal Singh’s

petition — a denial of asylum to a husband because he did not

stand up and expose the lies of his wife. The unity of husband

and wife in today’s America is not so close that a wife speaks

for a husband, nor that a husband adopts his wife’s words. 

The record depicts Singh as a frightened and depressed

man who unwittingly put his life in the hands of an unscrupulous attorney. The Indian police thrice arrested and tortured

Singh. They killed Singh’s brother in a “false encounter” after

the two brothers were arrested together during a protest. In his

third arrest, the police beat him unconscious. Singh fled India.

7482 SINGH v. HOLDER
Singh hired Randhir Kang to represent him in his asylum

application filed shortly after his arrival in the United States.

Kang has since been disbarred from practice in the immigration courts and this court based on his unethical and grossly

inadequate representation of clients. In re Kang, D2005-184

(BIA April 11, 2006); In re Randhir S. Kang, Esq., No. 04-

80059 (9th Cir. Nov. 28, 2005). 

The Immigration Judge issued a single oral opinion covering both Singh and Kaur. The Immigration Judge found that

the couple’s claims, “if credible, would form the basis for a

grant of asylum,” but she denied both applications based on

a single adverse credibility finding: “respondents’ testimony

has been proven to be false and has been consciously incorrect.”

The majority holds that the Immigration Judge legitimately

based her adverse credibility finding against Singh on statements made by Kaur. In Oliver Twist, when Mr. Bumble is

informed that “the law supposes that your wife acts under

your discretion,” he replies, “If that’s the eye of the law, the

law is a bachelor; and the worst I wish the law is that his eye

may be opened by experience — by experience.” Experience

in America establishes that a marital union does not dissolve

the identities of the two spouses.

SINGH v. HOLDER 7483