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Media Alerts - Singh v. Lynch, Attorney General - Ninth Circuit
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November 28, 2015
  Singh v. Lynch, Attorney General - Ninth Circuit
Headline: An Immigration Judge may rely on background documentary evidence as the sole basis to make an adverse credibility determination under the REAL ID Act.

Areas of Law: Immigration; Asylum Law - Convention Against Torture

Issue: Whether the Immigration Judge's adverse credibility determination was supported by substantial evidence when the IJ relied solely on background documentary evidence to determine that the petitioner's argument was implausible.

Brief Summary:
Pavittar Singh sought asylum under the Convention Against Torture (CAT). At an asylum hearing, Singh testified that in 1998, 2005 and 2006 while living in India, he was subjected to intimidation. The Immigration Judge (IJ) reviewed the evidence which consisted of reports submitted by the government and Singh as well as Singh's own testimony and determined that Singh's claims of attack in 2005 and 2006 were not plausible and denied Singh's request for asylum. The Board of Immigration Appeals (BIA) dismissed Singh's appeal in agreement with the IJ that the claims Singh made were not plausible because the reports showed there were no active militants in India after the 1990's. The Ninth Circuit held this was a case of first impression and that it could easily be solved by the language of the REAL ID Act, which explicitly allows the BIA and the IJ to base their credibility determinations on background evidence in the record.

Chief Judge Thomas concurred in part and dissented in part. Thomas found that the IJ and the BIA mischaracterized the background evidence and would have granted the petition for review.

Significance: Background evidence of record can be used as the sole basis for discrediting the claims of an asylum petitioner under the REAL ID Act.

Extended Summary:
Petitioner Pavittar Singh sought asylum under the Convention Against Torture (CAT) after being authorized to enter the United States as a nonimmigrant visitor in January 2007. After getting a job here in the U.S., the Department of Homeland Security sent Singh a notice to appear because he failed to get authorization for his employment from Immigration and Customs Enforcement.

At his asylum hearing, Singh testified before the Immigration Judge (IJ) that while living in India he was subjected to intimidation by terrorists in 1998 and reported his troubles to officials who refused to investigate the matter and instead accused him of harboring Sikh separatists. Additionally, Singh testified that he was harassed and beaten in 2005 while in police custody, then accosted and threated to death by terrorists again in 2006, which he again reported to police who arrested him and again beaten him while in police custody.

The Immigration Judge reviewed the reports and noted the "armed militants" were not active in the India during the years Singh claimed to be injured, and hadn't been since 1990's. Thus, the IJ determined that Singh's claims of attack in 2005 and 2006 were not plausible and denied Singh's request for asylum. The Board of Immigration Appeals (BIA) dismissed Singh's appeal agreeing with the IJ that the claims Singh made were not plausible since the reports stated that there were no active militants after the 1990's.

Singh appealed based on lack of substantial evidence claiming under the REAL ID Act, his specific testimony could not be discredited solely based on background documents. The Ninth Circuit stated that this was a case of first impression but could be easily resolved by the clear language of the Act itself.

The Ninth Circuit held that the IJ and the BIA could consider the totality of the circumstances, and base a credibility determination on the inherent plausibility of Singh's testimony and the consistency of that testimony with other evidence of record, namely the reports of the Department of State on country conditions. Thus, the IJ and the BIA permissibly relied on record evidence to determine the implausibility of Singh's account.

Dissent: Chief Judge Thomas concurred in part and dissented in part. Thomas felt that the IJ and the BIA mischaracterized the background evidence and should have granted the petition for review.

Judge Thomas agreed that the REAL ID Act does allow the IJ to discredit the petitioner's testimony solely based on background evidence, however believes the IJ is required to consider the totality of the circumstance and make individualized determinations that rest on "specific and cogent reasons" as required by 8 U.S.C. ยง 1158(b)(1)(B)(iii). In Thomas' opinion, even if the presence of armed militants ended in the 1990's, it does not foreclose the plausibility that militants could have harmed Signh in 2005 and 2006 as he claimed.

To read full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...15/09/21/08-74212.pdf

Panel: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges.

Date of Issued Opinion: September 21, 2015

Docket Number: 08-74212

Decided: Affirmed the Immigration Judge's decision to deny the applicants asylum request.

Case Alert Author: Lawrence J. Hudack

Counsel: Monica Ganjoo, Ganjoo Law Offices, San Francisco, CA, filed the brief for petitioner.

Tony West, Assistant Attorney General, U.S. Department of Justice, Civil Division, Washington, DC, filed the brief for the respondent. With him on the brief were Stephen J. Flynn, Assistant Director, and Janette L. Allen, Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Author of Majority Opinion: Judge O'Scannlain

Author of Dissenting Opinion: Partial Dissent by Chief Judge Thomas

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 11/28/2015 11:56 PM     9th Circuit  

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