Preet Kaur v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PREET KAUR, 
Petitioner, No. 03-73285
v.
 Agency No.
A73-419-669
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2005**
San Francisco, California
Filed August 11, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
10429
10432 KAUR v. GONZALES
COUNSEL
Richard E. Oriahki, Roman & Singh, LLP, San Francisco,
California, for petitioner-appellant Preet Kaur.
Ronald E. Lefevre, Department of Homeland Security, San
Francisco, California, Michelle E. Gorden, Department of
Justice, Washington, D.C., Thomas H. Tousley, Office of
Immigration Litigation, Washington, D.C., for respondent-
appellee Alberto R. Gonzales.
OPINION
BYBEE, Circuit Judge:
Preet Kaur (“Kaur”) petitions for review of a decision of
the Board of Immigration Appeals (“BIA”), affirming the
Immigration Judge’s (“IJ”) decision denying her requests for
asylum, withholding of removal, and relief under the Conven-
tion Against Torture (“CAT”). The IJ denied Kaur’s applica-
tion because he found her not credible. Kaur asserts that the
IJ’s adverse credibility determination was based upon imper-
missible grounds and was not supported by substantial evi-
dence. Specifically, she argues that the IJ relied on
inconsistencies that may have weakened her claim for asylum,
but that had no bearing on her credibility.
The question presented here is significant: Must an IJ
ignore repeated and blatant inconsistencies throughout an
KAUR v. GONZALES 10433
alien’s hearing testimony and applications, simply because,
when viewed individually, each inconsistency actually served
to weaken her eligibility for relief? We conclude that nothing
in our case law mandates such a technical approach to credi-
bility determinations. Accordingly, we hold that, in light of
the facts of this case, the IJ’s adverse credibility determination
was supported by substantial evidence. We deny the petition.
I. FACTS AND PROCEEDINGS BELOW
Petitioner Kaur, a native and citizen of India, entered the
United States in March of 1993. Subsequently, in January
1995, Kaur applied for asylum, withholding of removal, and
relief under the CAT. In her initial application, Kaur provided
certain biographical information about herself, specifically
representing that she was not married. She claimed that she
was persecuted because her brother and father were members
of the All India Sikh Student Federation (“Federation”) and
had been active in local political affairs. Kaur described in her
application how, in December of 1991, more than 65 Punjabi
police officers raided her home and arrested her brother and
father. She also stated that she had personally campaigned for
the boycott of the February 1992 state assembly election in
the Punjab region of India. She recalled that she was arrested,
in May of 1992, taken to a police station, and raped twice by
a local police officer. She represented that she subsequently
fled India by traveling first to Nepal, then to Singapore, Can-
ada, and finally, the United States.
After submitting her application, an INS officer inter-
viewed Kaur on February 15, 1995. During this interview,
Kaur testified to the officer consistent with her original appli-
cation. She also swore that the contents of her asylum applica-
tion and the attached declaration were true.
At a hearing on the merits of her asylum application, Kaur
submitted a revised application accompanied by another writ-
ten declaration. In her second application, Kaur’s recitation of
10434 KAUR v. GONZALES
her biographical information as well as the events leading up
to her departure from India changed dramatically. Kaur now
stated that she was not in fact single, but married with a child.
Rather than actively campaigning for the February 1992 elec-
tion boycott, Kaur now maintained that her political activities
were limited to voting in the November 1989 elections. In
addition, Kaur stated that instead of the 65-70 police officers
she originally claimed raided her home in December of 1990,
there were actually only 8-12 officers, and the year was 1991.
Kaur went on to declare that it was her brother and grandfa-
ther, not her father, who were active in Indian politics and
who had been arrested and beaten by the Punjabi police.
Importantly, in her second application, Kaur stated that, in
fact, she was not raped during the May 1992 arrest, but only
interrogated, threatened, and released to her family the next
day. One of the few consistencies between the two written
statements that Kaur offered was that she had fled India by
way of Nepal, Singapore, and Canada before entering the
United States. But even this minor point of agreement van-
ished during her oral testimony.
At a hearing before an IJ on the merits of her asylum appli-
cation further inconsistencies emerged. Kaur testified first that
her grandfather was a member of the Federation, but later rep-
resented only that it was “possible” that he was a member.
She also changed the route by which she arrived in the United
States. In contrast to her first and second asylum applications,
Kaur testified at the hearing that she traveled first to Ger-
many, then to Canada, and finally to the United States. Signif-
icantly, Kaur admitted to the IJ that she knowingly lied to the
INS officer, in particular stating that she was single, for the
express purpose of ensuring that her husband could file an
asylum application if hers was denied.
Reviewing the numerous contradictions between her oral
testimony and her asylum applications, the IJ ruled that Kaur
was not credible. Accordingly, the IJ denied her applications
KAUR v. GONZALES 10435
for asylum, withholding of removal, and relief under the
CAT. The BIA affirmed the IJ’s decision without opinion and
this timely petition for review followed.
II. STANDARD OF REVIEW
When the BIA affirms an IJ’s decision without opinion, we
review the IJ’s decision as the final agency determination. See
Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004). This
court reviews an IJ’s credibility determination for substantial
evidence. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th
Cir. 2004). We accord special deference to an IJ’s credibility
determination, and will only exercise our power to grant a
petition for review when the evidence “compel[s] a contrary
conclusion.” See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.
2003). However, an IJ must provide specific and cogent rea-
sons to support an adverse credibility determination. See He
v. Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003).
III. ANALYSIS
In this case, the issue is not whether the IJ provided specific
and cogent reasons to support his credibility determination,
but rather whether the proffered reasons were based on imper-
missible grounds. We conclude that they were not.
[1] It is well settled in our circuit that minor inconsistencies
that do not go to the heart of an applicant’s claim for asylum
cannot support an adverse credibility determination. Akin-
made v. INS, 196 F.3d 951, 954 (9th Cir. 1999) (citing
Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.
1986)). Additionally, in Damaize-Job v. INS, we first
announced that “minor discrepancies in dates that are attribut-
able to the applicant’s language problems or typographical
errors and cannot be viewed as attempts by the applicant to
enhance his claims of persecution have no bearing on credi-
bility.” 787 F.2d 1332, 1337 (9th Cir. 1986). See also Wang
v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003) (observing
10436 KAUR v. GONZALES
that “minor discrepancies” on points incidental to the asylum
applicant’s claim of persecution — namely dates, normal
work hours, and related details — could not support an
adverse credibility determination); cf. Vilorio-Lopez v. INS,
852 F.2d 1137, 1142 (9th Cir. 1988) (“[D]iscrepancies in
dates which reveal nothing about an asylum applicant’s fear
for [her] safety are not an adequate basis for an adverse credi-
bility finding.”).1
[2] Later cases have expanded the principle beyond dates,
language problems and typographical errors, elevating its sta-
tus to that of a general rule. See, e.g., Stoyanov v. INS, 172
F.3d 731, 736 (9th Cir. 1999) (stating that where the inconsis-
tency in the applicant’s testimony lessens the degree of perse-
cution she experienced, such inconsistency “generally does
not support an adverse credibility determination”) (emphasis
added). The concern underlying each of our decisions in this
arena has been to avoid premising an adverse credibility find-
ing on an applicant’s failure to remember non-material, trivial
details that were only incidentally related to her claim of per-
secution. See, e.g., Osorio v. INS, 99 F.3d 928, 931 (9th Cir.
1996) (“[T]rivial errors by an asylum applicant do not consti-
tute a valid ground upon which to base a finding that an asy-
lum applicant is not credible.”) (quotations omitted); Vilorio-
Lopez, 852 F.2d at 1142 (observing that “[m]inor inconsisten-
cies” that “reveal nothing about an asylum applicant’s fear for
his safety are not an adequate basis for an adverse credibility
finding”). This concern is heightened where the alien receives
the assistance of a translator to aid in the preparation of her
asylum application. See, e.g., Alvarez-Santos v. INS, 332 F.3d
1245, 1254 (9th Cir. 2003) (“Inconsistencies due to an
unscrupulous preparer, without other evidence of dishonesty
1
With the passage of the Real ID Act, our review of an IJ’s adverse
credibility finding is significantly restricted. See 8 U.S.C. § 1158(b)(1)
(B)(iii). However, the relevant provisions of that Act are not applicable to
this case because Kaur applied for relief before May 11, 2005. See Pub.
L. 109-13, Div. B, Title I, § 101(h)(2), 119 Stat. 231 (May 11, 2005).
KAUR v. GONZALES 10437
. . . do not provide a specific and cogent basis for an adverse
credibility finding.”) (internal citation omitted) (emphasis
added).
The petitioner in this case would have us ignore the mass
of serious, repeated and blatant inconsistencies in her testi-
mony, and instead focus on the singular fact that one of the
most damaging of her contradictions — the revelation that she
was not in fact raped by the police — only served to weaken
her claim. In other words, Kaur argues that because she even-
tually settled upon a story far less dramatic than its precur-
sors, we must ignore her inconsistencies altogether. It strains
credulity to hold that the evidence presented at the asylum
hearing compels us to find Kaur believable for the sole reason
that she admitted to being a liar.
[3] We do not read our cases to mandate such a narrow
approach. Our court has never articulated a per se rule that
whenever inconsistencies technically weaken an asylum claim
they can never serve as the basis of an adverse credibility
finding. Rather, in each case where we have employed the
rule first announced in Damaize-Job, we have emphasized the
“minor” or “trivial” nature of the alleged discrepancies. See
generally Wang, 341 F.3d at 1021-22 (conflict involving the
exact date of applicant’s abortion, the applicant’s normal
work hours, whether her husband met her at the hospital after
her first abortion, and how the couple celebrated the preg-
nancy; holding that “minor discrepancies” which “do not go
to the heart of [the applicant’s] asylum claim . . . cannot con-
stitute substantial evidence”); Shah v. INS, 220 F.3d 1062,
1068 (9th Cir. 2000) (conflict between the date of death
reflected on a death certificate and the date testified to by the
asylum applicant; holding that the “discrepancy . . . is not a
proper basis for an adverse credibility finding in this case” as
“[i]t is well-established that, ‘minor discrepancies in dates
that are attributable to . . . typographical errors’ cannot prop-
erly serve as the basis for an adverse credibility finding”) (cit-
ing Damaize-Job, 787 F.2d at 1337)).
10438 KAUR v. GONZALES
Most notably, in the very case in which the rule was first
proclaimed, Damaize-Job, the IJ’s adverse credibility finding
was premised in part on “minor discrepancies.” 787 F.2d at
1337. In that case, the petitioner stated in his oral testimony
that his daughter was born in 1968, while his asylum applica-
tion indicated that she was born in 1967. Id. The IJ found that
this inconsistency called the petitioner’s credibility into doubt.
We found fault with the IJ’s reasoning, observing that “[t]he
IJ nowhere explained how these inaccuracies reflected on the
credibility of his persecution claims or for what possible rea-
son [petitioner] would intentionally have provided incorrect
information on such trivial points.” Id. We explicitly charac-
terized the errors as “trivial,” and concluded that they pro-
vided an insufficient “excuse upon which to predicate a
finding of no credibility.” Id. Significantly, it was the trivial-
ity of the errors that precluded them from supporting the
adverse credibility determination, not the fact that, technically
speaking, the errors weakened the petitioner’s claim.
Likewise, in Garrovillas v. INS, we emphasized that “in-
consistences of less than substantial importance for which a
plausible explanation is offered” cannot support an adverse
credibility finding. 156 F.3d 1010, 1014 (9th Cir. 1998). In
that case, the alien’s asylum application stated that he had
been fired upon, but he testified six years later that he had
never been fired upon. He offered a plausible explanation for
the inconsistency: “his former attorney prepared his . . . asy-
lum application and [ ] he had signed it without reading it.”
Id. at 1013. We observed that “[i]n itself, the inconsistency
[did] not prove much” as it was “quite possible that the attor-
ney who filed the application stretched the facts without
informing [the alien].” Id. at 1014 (emphasis added). Under
the circumstances, we concluded that the alien’s revised story
did not provide substantial evidence to support an adverse
credibility finding:
[T]here was no reason for Garrovillas to disavow the
earlier statement other than a desire to correct an
KAUR v. GONZALES 10439
error of which he had not been aware. His revised
story served to lessen the degree of persecution he
experienced, rather than to increase it. In addition,
there is nothing in the record to suggest that Gar-
rovillas had any reason to fear that a false assertion
would be exposed at the hearing. Thus, as far as we
can tell from the record, the most likely explanation
for the change is a desire to tell the truth and to cor-
rect a false statement that reflected no culpable con-
duct on his part.
Id. However, we were careful to emphasize that “[i]f the
inconsistency were accompanied by other indications of dis-
honesty, we might deem the BIA’s finding justified.” Id.(emphasis added)
[4] In short, our case law does not mandate that we, or the
IJ for that matter, abandon our common sense in favor of rules
of general application. It is well established in this circuit that
false statements and other inconsistencies must be viewed in
light of all the evidence presented in the case. See Kaur v.
Ashcroft, 379 F.3d 876, 889 (9th Cir. 2004) (“[M]isrep-
resentations must instead be evaluated in light of all the cir-
cumstances of the case . . . .”); Turcios v. INS, 821 F.2d 1396,
1400 (9th Cir. 1987) (observing that “it is the examiner’s
responsibility to evaluate [untrue] statements in the light of all
the circumstances of the case”). Hence, it is incumbent upon
the IJ to view each portion of an alien’s testimony, not solely
as independent pieces of evidence with no bearing on the tes-
timony as a whole, but in light of all of the evidence pres-
ented. Importantly, in Garrovillas, we explicitly qualified the
general rule regarding inconsistencies that weaken an asylum
claim by stating that when “the inconsistency [is] accompa-
nied by other indications of dishonesty,” such testimony
might in fact support an adverse credibility finding. 156 F.3d
at 1014 (emphasis added). Cf. Alvarez-Santos, 332 F.3d at
1254 (“Inconsistencies due to an unscrupulous preparer, with-
out other evidence of dishonesty . . . do not provide a specific
10440 KAUR v. GONZALES
and cogent basis for an adverse credibility finding.”) (internal
citation omitted) (emphasis added).
[5] “[O]ther indications of dishonesty” abound in this case.
Garrovillas, 156 F.3d at 1014. Indeed, the inconsistencies are
so numerous and so blatant as to cast doubt on Kaur’s entire
story. For example, Kaur declared in her first asylum applica-
tion that she had campaigned personally for the boycott of the
February 1992 state assembly election in the Punjab region of
India. She later stated that her political activities were limited
to voting in the November 1989 elections. Moreover, her first
asylum application represented that she was not married, but
her second application indicated that she was married and
indeed had one child. Kaur 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. Unlike the “plausible explanation” offered
by the petitioner in Garrovillas, Kaur’s explanation cannot be
said to “reflect[ ] no culpable conduct on [her] part.” 156 F.3d
at 1014.
[6] Kaur also stated in her second asylum application that
only 8 to 12 members of the Punjabi police entered her home;
her first application listed the number between 65 and 70. The
date of the raid on her home also changed from one applica-
tion to the next. These discrepancies are significant because
they concern one of the few interactions between Kaur and
the Punjabi police.
[7] Even during the asylum hearing, Kaur seemed unsure
of her story, first stating that her grandfather was a member
of the Federation, and then stating only that it was “possible”
that he was a member. More significantly, however, in her
second application Kaur retracted her original statement that
she had been raped by the Punjabi police. This material incon-
sistency goes to the heart of Kaur’s claim of persecution —
her mistreatment at the hands of the Punjabi police — regard-
less of whether it strengthens or weakens her claim. Impor-
KAUR v. GONZALES 10441
tantly, this discrepancy cannot rationally be characterized as
“minor;” it falls plainly outside the scope of the general rule
announced in Damaize-Job.
It is of no consequence, in this case, that Kaur’s first appli-
cation, containing many of the admitted falsities, was pre-
pared by a third party. While we have previously observed
that an “inconsistency does not prove much” if it is possible
that the petitioner merely signed the application without dem-
onstrating any awareness of its contents, the principle has lit-
tle application to these facts. Garrovillas, 156 F.3d at 1014.
Here, Kaur was personally interviewed by an asylum officer
and questioned as to the contents of her first application. She
was given an opportunity to clarify her testimony; had she
desired to tell the truth and correct a false statement she could
have easily done so at that time. Indeed, Kaur admitted, at her
asylum hearing, that there were material misrepresentations in
her first application and that she was aware of those misrepre-
sentation at the time she was interviewed by the INS officer.
When presented with the opportunity, the petitioner here
expressed no “desire to correct an error of which [she] had not
been aware.” Garrovillas, 156 F.3d at 1014. Not only did
Kaur fail to correct her misrepresentations, she repeated the
version of events outlined in her first asylum application and
swore to their verity.
[8] We do not read our cases to mandate that the IJ ignore
Kaur’s repeated and blatant inconsistencies. Rather, we hold
that when inconsistencies that weaken a claim for asylum are
accompanied by other indications of dishonesty — such as a
pattern of clear and pervasive inconsistency or contradiction
— an adverse credibility determination may be supported by
substantial evidence. In the end, when reviewing an adverse
credibility determination we must decide whether the IJ cor-
rectly labeled the applicant not credible. As we stated suc-
cinctly in Sarvia-Quintanilla v. INS, “[the IJ] is, by virtue of
his acquired skill, uniquely qualified to decide whether an
alien’s testimony has about it the ring of truth.” 767 F.2d
10442 KAUR v. GONZALES
1387, 1395 (9th Cir. 1985). Credibility determinations, by
their very nature, are always fact-driven, making them inher-
ently ill-suited to the application of technical per se rules. In
light of the particular facts presented here, we conclude that
the repeated and significant inconsistencies in Kaur’s testi-
mony deprive her claim of the requisite “ring of truth.” As
aptly stated by the IJ, “[t]he truth in this case has . . . been a
moving target.”
IV. CONCLUSION
[9] We are unable to conclude that the evidence in this case
compels a finding that the petitioner was credible, or that the
IJ’s credibility determination was based upon impermissible
grounds. Rather, we hold that substantial evidence supports
the IJ’s adverse credibility determination. Accordingly,
Kaur’s petition for review is denied.
PETITION DENIED.