NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER SINGH,

Petitioner,

v. MATTHEW G

. WHITAKER , Acting Attorney General,

Respondent. No. 15

- 70612 Agency No. A200

- 235

- 359

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 13, 2018 San Francisco, California Before: BEA and MURGUIA, Circuit Judges, and SOTO, ** District Judge. Balwinder Singh, a citizen of India, petitions fo r review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Singh

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** Th e Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. 

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claim s persecution by members of India’s Congress Party due to his membership in the “Mann Party,” a political party within India that seeks the formation of an independent Sikh state. The IJ denied relief based principally on an adverse credibility determ ination , which Singh challenges here

. We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition and reverse. Under the REAL ID Act, the a gency must provide “specific and cogent reasons in support of an ad verse credibility determination. ” Sh restha v. Holder , 590 F.3d 1034, 1044 (9th Cir. 2010) ( citation omitted) . The agency should consider the totality of the circumstances, statutory factors, and other relevant evidence. S

ee 8 U.S.C. § 1158(b)(1)(B)(iii)

. Courts give a “healthy measure of deference to ag ency credibility determinations, ” as “ IJs are in the best position to assess demeanor and other credibility cues that we cannot readily access on review.” Shrestha , 590 F.3d at 1041. However , an IJ may not “ cherry pick solely facts favoring an adverse credibility determination while ignoring f acts that undermine that result. ” I

d. at 1040. Similarly, while i nconsistencies no longer must go to the heart of the claim, a n “utterly trivial” inconsistency will not form a suff icient basis for an adverse credibility determination. Id. at 1043. T he petitioner should have the opportunity to provide an explanation for any inconsistency. Ren v. Holder , 648 F.3d 1079, 1092 n.14 (9th Cir. 2011). The IJ should consider the petitioner’s explanation, as well as “ other record evidence that sheds light on3

whether there is in fact an inconsistency at all. ” Shrestha , 590 F.3d at 1044. Relying on the IJ’s credibility determination, t he BIA concluded that Sin gh

was not credible based upon three grounds : (1) the implausibility of Singh’s testimony that he did not inform Mann Party leaders that he was twice attacked by Congress Party members, (2) the omission in affidavits submitted by Mann P arty leaders of any mention of the attacks on Singh, and (3) inconsistencies in Singh’s testimony with regard to his voting history and voting ID card. 1 Reviewing for substantial evidence, we conclude that all three grounds were unsupported by the record. See Lin v. Gonzales , 434 F.3d 1158, 1162 (9th Cir. 2006)

. First, the IJ ’s conclusion that it was implausible that Singh would not have notified the Mann Party leaders of the two attacks that he suffered at the hands of the Congress Party workers was not supported by substantial evidence . Here, t he IJ mischaracterized Singh’s testimony about his relationship with the local Mann Party leader, Kashmiri. See Ren , 648 F.3d at 1089 ( reversing where “ t he IJ’ s adverse credibility determination rested largely on mischaracteriz ations of Ren’ s testimony that are belied by the record.”). The IJ found it striking that Singh would not notify the Mann Party of the violence “ in light of his pe rsonal relationship with

1 “ Where, a s here, the BIA reviewed the IJ’ s credibility

- base d decision for clear error and relied upon the IJ’ s op inion as a statement of reasons but did not merely provide a boilerpla te opinion, we look to the IJ’ s [] decision as a guide to what lay behind the BIA’ s conclusion.” Lai v. Holder , 773 F.3d 966, 970 (9th Cir. 2014) (internal quotation marks and citation o mitted).4

[Kashmiri], with whom he communicated about party tasks with some re gularity.”
T he IJ was incorrect that Singh had a “personal relationship” with the local Mann Party leader, Kashmiri , or that Singh communicated with Kashmiri regularly

. Singh consistently testified that he had no personal relationship with the district
pre sident Kashmiri and that Kashmiri called Singh 2

– 3 times with instructions to put up posters, but Singh never met Kashmiri and did not know him. Singh further testified that he never attended a party meeting, and that Kashmiri likely obtained his phone num

ber from party records. The IJ failed to acknowledge this testimony. Likewise, the IJ placed too much significance on the fact that the village counselor,
S arpanch Kaur, knew about the attacks in light of the testimony that Singh and his family did have a personal relationship with S arpanch Kaur. The fact that Singh had no personal relationship with Kashmiri , but did have a personal relationship with Kaur makes it eminently plausible that Kaur would know about the attacks, but Kashmiri would not

. Se e Bhattarai v. Lynch , 835 F.3d 1037, 1044 (9th Cir. 2016) (“ The fact that Bhattarai stayed with friends during his first days in Kathmandu in 2002 but by 2010 had a rented home in a Kathmandu suburb is not only internally consistent but also eminently beli evable. ”). Finally, the IJ considered Singh’s explanation of why he did not report the attacks to the Mann Party, but failed to consider the second part of Singh’s explanation , regarding why he report ed the attacks to the police . When considered together, both explanations5

plausibly reflect Singh’s dedication to his political party and his desire not to upset the party’s “balance

. ” The failure on the part of both the IJ and the BIA to fully consider Singh’s explanation was an error. See Shrestha , 590 F.3d at 1044 (“To ignore a petitioner’ s explanation for a perceived inconsistency and relevant record evidence would be to make a credibility determination on less than the total circumstances in c ontravention of the REAL ID Act’ s text. ”). In sum, the IJ failed

to state “a legitimate, articulab le basis” for his disbelief that Singh would not tell the Mann Party leaders about the attacks

. See Lin , 434 F.3d at 1162 (alterations omitted)

. Second, the IJ’s reliance on the o mission of any menti on of the attacks in the letters of the Mann Party leaders ignores Singh’s testimony that he did not inform those leaders of the attacks. Regarding Kashmiri’s letter, there is no evidence in the record that Kashmiri ever learned about the attacks. For the reasons already discussed, it is not implausible that Singh would choose not to tell Kashmiri about the attacks , as the two did not have a personal relationship. Similarly, Mr. Mann’s letter almost exclusively discussed problems faced by Sikhs in India, an d contained no details of Singh’s particular case. T his is consistent with the fact that Singh testified that his parents only informed Mann of the attacks when they requested the letter from him for the purposes of the present proceedings. Given that n eit her Mann nor Kashmiri had personal knowledge of the attacks, their failure to discuss6

the attacks in the letters does not conflict with Singh’s testimony or cast doubt upon its accuracy. See Lai , 773 F.3d at 974. The BIA’s reliance upon the omissions

was t herefore not supported by substantial evidence. Third, the BIA’s conclusion that Singh’s testimony was internally inconsistent with regards to whether he had a registered voter card and whether he was able to vote in the elections was not supported by su bstantial evidence. From the present record, it is not clear whether the re was any inconsistency at all. When first asked if there was a reason why he did not have a voter ID card, Singh gave a

one - word response: “No.” At this point in the testimony there had been no discussion of Congress Party’s tactics to dissuade voting by Sikhs. Agency counsel did not follow up on the question, which could have been understood by Singh in any number of ways. When the subject did come up again, the questioning wa s

more specific . DHS counsel asked : “ Sir,

. . . why would not having the card stop you from voting? ” Singh answered accordingly: “ Because the Congress Party workers were there, and because of that, we cannot put

- we cannot cast our vote. ” Singh’s two stat ements, when read in context, at best present a trivial inconsistency

. See Ren , 648 F.3d at 1089 (“ We conclude that, ‘[c] onsidering the totality of the circumsta nces, and all relevant factors,’ 8 U.S.C

. § 1158(b)(1)(B)(iii), the inconsistencies cited by th e IJ are, both on their own and in the aggregate, manifestly trivial. ” (alteration in original) ). Moreover, the BIA7

erred in rejecting Singh’s explanation for the inconsistency. Zhi v. Holder , 751 F.3d 1088, 1092 (9th Cir. 2014)

. Later, when asked about t his inconsistency, Singh answered : “It’s a mistake . . . . Perhaps I didn’t understand the question

. . . . I was giving answer in a hurry and I did not understand the question.” In light of the
open - ended nature of DHS counsel’s question and Singh’s one - word response, it is believable that Singh simply misunderstood the question or that he might reasonably have understood the question in various ways. Perez

- Arceo v. Lynch , 821 F.3d 1178, 1184

– 85 (9th Cir. 2016) (concluding it was unclear whether there was any inconsistency at all where the government posed ambiguous and varying questions). For all of these reasons, we conclude that the inconsistency in testimony about Singh’s voter ID card and voting history was not supported by substantial evidence in the record. Because none of the bases for discrediting Singh finds support in the record,

w e reverse the adverse credibility determination and remand for further proceedings on Singh’s claims for asylum, withholding of removal, and CAT relief

. PETITIO N GRANTED; REVERSED and REMANDED.1 Singh v. Whitaker , No. 15

- 70612 BEA, Circuit Judge, dissenting: I disagree with the majority that the BIA’s conclusion that Singh was

not credible was unsupported by the record. T he BIA relied on three grounds to find that Singh was not credible: (1) the implausibility of Singh’s testimony that he did not inform Mann Party leaders that he was attacked
twice by Congress Party members, (2) the omission of any mention of the attacks on Singh i n affidavits submitte d by Mann P arty leaders, a nd (3) inconsistencies in Singh’ s testimony relating to his vot ing history and voter
ID card. For the reasons explained below, I conclude the record contained substantial evidence to support the BIA’s decision that Singh’s testim ony was not credible, based on these three grounds. Shrestha v. Holder , 590 F.3d 1034, 1039 (9th Cir. 2010)

. Whether I would have made the same decision is another and irrelevant question. First, the IJ’s conclusion that it was implausible that Singh wou ld not have notified the Mann Party leaders of the two attacks by the Congress Party workers was supported by substantial evidence. Although Singh reported the first attack to the local police, he did not report either attack to the local Mann Party leader, Kashmiri , with whom Singh had transacted party matters

. Singh’s explanation for not reporting the attacks to Kashmiri 

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U.S. COURT OF APPEAL S2 was to preserve the Mann Party’s “balanc e . ” However, he does not explain what preserving the Party’s “balance” means, nor why reporting the attacks to Kashmiri would upset this “balance.” Moreover, this explanation does

not make sense in light of the fact that he reported the first attack to the police. Nothing in the record ind icates that police reports are conf idential,

rat her than public , and that the police might not relate the attacks to the Mann Party as part of a police investigation

. There is no reason why reporting the attack to the police would not upset the Party’s “balance,” while reporting the attack s to Kashmiri would upset the Party’s “balance.” Second, I disagree with the majority that the IJ’s reliance on the omission of any mention of the attacks in the letters of the Mann Party
leaders (Kashmiri and Mann) ignores Singh’s testimony that he did no t inform those lea ders of the attacks. Although the majority is correct that there is no evidence in the record that Kashmiri learned of the attacks, i t is
im plausible that Mann would not mention the beatings in his letter

. As the majority acknowledges, Singh testified that his parents informed Mann of the attacks when they requested the l etter from Mann for the purpose of the present proceedings. Considering that the purpose of the letter was to establish that Singh would be persecuted, the two attacks would have been highly relevant in establishing this

.3 Third, the BIA’s conclusion that Singh’s testimony was internally inconsistent with regards to whether he had a registered voter ID card and whether he was able to vote in the elections was supported by substantial
evidence. Singh contradicted himself twice as to voting. First , he was asked
if there was a reason he did not have a voter ID card. Singh answered “No. ” Singh then related that Congress Party workers controlled the voter ID cards and would not give him a voter ID card because he would not vote for the Congress Party. That is a ver y obvious reason he did not have a voter ID card and a very obvious contradiction

. In addition, Singh testified that he
voted in 2004 or 2005 without a voter ID card, but also claimed he could not

vote after 2000 without a voter ID card. This is a nother contradic tion that he did not explain. Because I agree with the BIA that Singh’s testimony was not credible, I would deny Singh’s petition for review.