Kaur v. Ashcroft

MEMORANDUM *** Rajinder Kaur petitions for review of the decision of the Board of Immigration Appeals (“BIA”) that affirmed the Immigration Judge’s (“IJ”) order denying her application for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We grant the petition and remand to the BIA for further proceedings. The IJ denied Kaur’s application because he determined that Kaur was not a credible witness.1 The credibility issues raised by the IJ, however, did not “go to the heart” of Kaur’s asylum and withholding claim — that she fled her native country because she was arrested, beaten, raped, and tortured by local police authorities. The IJ found that Kaur was evasive during the hearing. General accusations of unresponsiveness, however, are not enough to support an adverse credibility finding. See Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir.2002). The IJ also raised concerns about Kaur’s testimony regarding various dates, such as the date of her matriculation exam, — 54 — the date that she left home and went to her uncle’s house, and the date when she fled from India. The noted inconsistencies were minor and were often corrected by Kaur without prompting by her counsel or the IJ. More importantly, “discrepancies in dates which reveal nothing about an asylum applicant’s fear for [her] safety are not an adequate basis for an adverse credibility finding.” Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988). The IJ also questioned why the rebel group with which Kaur was affiliated never came to her rescue, why local police authorities harassed Kaur instead of her family, why Kaur had not been in regular contact with her family, and why Kaur did not volunteer more at the hearing about the plight of Indian farmers considering her “farming” background.2 The IJ improperly engaged in speculation and conjecture about the likely conduct of militant rebel groups, local police officials, and Indian farmers. “[I]t is error to rest a decision denying asylum on speculation and conjecture.” Shah v. INS, 220 F.3d 1062, 1069 (9th Cir.2000). Finally, both the BIA and the IJ wrongly insisted on corroborative evidence. An applicant’s testimony alone, “if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13(a) (2002). Here, Kaur testified credibly and never contradicted the heart of her asylum claim. The IJ and the BIA erred by requiring Kaur to supplement her testimony with additional corroborative evidence. See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) (“It is well established in this circuit that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.”).3 Therefore, we conclude that the adverse credibility determination was not supported by “substantial evidence.” Shah, 220 F.3d at 1067. Because the adverse credibility decision was the sole basis for denying Kaur’s application, we reverse and remand this matter to the BIA to determine the separate issue of Kaur’s eligibility for asylum and withholding of deportation. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Chen v. INS, 266 F.3d 1094, 1101 (9th Cir.2001), vacated on other grounds, 537 U.S. 1016, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002), reinstated in pertinent part, 326 F.3d 1316, 1317 (9th Cir.2003) (remanding the issue of eligibility for asylum and withholding of deportation but reaffirming that “this court’s [prior] reversal of the BIA’s adverse credibility finding still stands ... [because] the BIA failed to provide the requisite specific, cogent reason for discrediting [the petitioner]”). See also He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003) (reversing an adverse credibility determination because “[t]he INS, having lost this appeal, should not have repeated opportunities to show that [the petitioner] is not credible any more than [the petitioner], had [s]he lost, should have an opportunity for remand and further proceedings to establish [her] credibility”). PETITION GRANTED. REMANDED. Footnotes [***] ■j'jjjg disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. [1] The BIA adopted the IJ's adverse credibility determination. "When the BIA adopts an IJ’s findings and reasoning, we review the IJ's opinion as if it were the opinion of the BIA.” Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999). [2] The IJ implied that Kaur and her family were poor farm laborers. In fact, Kaur testified that her parents owned a "farming business” on the outskirts of the village, one that apparently generated enough income for Kaur's father to pay large sums of money to . obtain his family's release from detention and to smuggle Kaur into the United States. [3] The BIA and IJ also appeared to discredit Kaur because the two-sided college identification card that she brought from India contained minor infirmities. Because the card and its flaws are not germane to the heart of Kaur's claim, any indicia of the card's unreliability should not be considered as factors in determining her credibility.