Raj Kumar v. Gonzales , 435 F.3d 1019 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJ KUMAR, 
Petitioner,
No. 03-70191
v.
 Agency No.
ALBERTO R. GONZALES, Attorney A75-579-218
General,
Respondent.

RAJ KUMAR, 
Petitioner, No. 03-73449
v.
 Agency No.
A75-579-218
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 12, 2005—Pasadena, California
Filed January 23, 2006
Before: Stephen Reinhardt, Alex Kozinski, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Kozinski
829
KUMAR v. GONZALES 833
COUNSEL
Garish Sarin, Law Offices of Garish Sarin, Los Angeles, Cali-
fornia, for the petitioner.
Peter D. Keisler, Assistant Attorney General; Linda S. Wendt-
land, Assistant Director; John S. Hogan, Office of Immigra-
tion Litigation, Washington, D.C., for the respondent.
834 KUMAR v. GONZALES
OPINION
REINHARDT, Circuit Judge:
Raj Kumar (Raj), an Indian citizen and native of the north-
ern Indian state of Jammu and Kashmir, petitions for review
of the Board of Immigration Appeals’ (BIA) order affirming,
without an opinion, the denial of his applications for asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT). He also petitions for review of the
BIA’s denial of his motion to reopen. We conclude that the
Immigration Judge (IJ) erred in finding (1) that Raj was not
credible, (2) that Raj had not established a nexus between his
past persecution and at least one of the five protected grounds
enumerated in 8 U.S.C. § 1101(a)(42)(A), and (3) that Raj had
failed to demonstrate a reasonable fear of future persecution.
FACTUAL AND PROCEDURAL BACKGROUND
According to Raj’s sworn declaration, in the early morning
of January 6, 1998, police officers stopped him as he walked
to his neighborhood temple in Jammu and Kashmir and asked
him whether he knew the whereabouts of Syed Ali Shah,
whom the police had identified as a suspected terrorist and
Muslim separatist. Raj pointed the officers in the direction of
Shah’s house but initially refused to accompany them there,
in part because he did not believe that Shah was a terrorist.
After the officers physically assaulted Raj and threatened him
with arrest and possible death if he did not cooperate, he
agreed to lead them to Shah’s house.
When Raj and the police arrived at Shah’s residence, Shah
answered the door carrying a gun. Upon seeing that Raj was
with law enforcement personnel, Shah attempted to flee and
was shot by the officers and thereafter arrested. After Shah’s
arrest, Raj was released by the police. Several hours later,
individuals associated with Shah came to the Kumar home
and, believing that Raj had been involved in Shah’s arrest,
KUMAR v. GONZALES 835
began yelling threats and throwing stones at the house. That
evening, Raj and his brother Rajinder were arrested by the
local police. The arresting officers informed them that Shah
had died from his gunshot wounds but, prior to his death, had
told the police that Raj and Rajinder were involved in terrorist
activities.
The brothers were taken to the police station, where Raj
was repeatedly and severely beaten with wooden sticks and
leather belts by officers who told him that he would be killed
if he did not disclose the identities of Muslim terrorists and
reveal information about their planned terrorist activities.
Despite Raj’s truthful pronouncements that he was not
involved with any militant or terrorist organization and could
not provide the police with any relevant information, his con-
finement and physical abuse continued until February 6, 1998,
when his father successfully bribed a police officer to release
him along with his brother.
When Raj returned home from the police station he discov-
ered that, during his confinement, individuals associated with
Shah who were involved with Muslim terrorist organizations
had come to the Kumar home seeking revenge for Shah’s
arrest and death. These individuals had killed Raj’s brother
Ram and also threatened to kill Raj, Rajinder and other mem-
bers of the Kumar family. When Raj and Rajinder learned of
these threats, they fled India; the two brothers arrived in the
United States by way of Germany and Canada on February
26, 1998, and subsequently separated.
On or about April 24, 1998, Raj applied for asylum and
withholding of removal. At a brief preliminary hearing before
the IJ on December 16, 2000, Raj additionally requested relief
under CAT. A hearing on the merits of Raj’s case was held
on May 25, 2000. At that hearing, Raj submitted in evidence,
among other things, his sworn declaration detailing the events
described above, Rajinder’s application for asylum, the death
certificate for his brother Ram which was sent from Jammu
836 KUMAR v. GONZALES
and Kashmir, a letter from his mother and father stating that
a newly-appointed police official had threatened to kill him if
he returned to India, and several photographs depicting inju-
ries suffered from the beatings at the police station. Also in
evidence were country reports from India which stated,
among other things, that India was the site of significant civil
rights abuses stemming from “deficient police methods and
training” as well as “violent secessionist movements” respon-
sible for “extrajudicial executions and other political killings,
torture, and brutality.” These problems were “acute in Jammu
and Kashmir,” where “torture and rape by police” and “arbi-
trary arrest and incommunicado detention” operated in con-
junction with a “judicial system [that] barely functions.”
On September 14, 2001, the IJ denied Raj’s applications for
asylum, withholding of removal, and relief under CAT. The
IJ based the decision on his findings (1) that Raj was not cred-
ible, (2) that Raj had failed to establish a nexus between the
harm suffered and a protected ground, and (3) that the threat
of future persecution was speculative and thus Raj’s fear of it
was not reasonable.
With respect to his first finding that Raj was not credible,
the IJ concluded that Raj had submitted fraudulent documen-
tary evidence. Specifically, the IJ determined that a number
four written on the date line of Rajinder’s asylum application
was “precisely the same peculiar and uniquely styled” number
four that was written on Ram’s death certificate. Based upon
this and nothing more, the IJ surmised that the death certifi-
cate was likely forged by Raminder Singh, who had prepared
the asylum applications for both Raj and Rajinder.
The IJ also noted that several of the photographs attached
to Raj’s asylum application which purported to show injuries
that he had suffered at the hands of the Indian police officers
were identical to photographs attached to Rajinder’s applica-
tion. The IJ concluded based upon this finding that Raj was
attempting to claim injuries that were actually suffered by his
KUMAR v. GONZALES 837
brother. The IJ also stated that he did not believe Raj’s con-
tention that he did not know where Rajinder was at the time
of the hearing, despite Raj’s statements that Rajinder was a
truck driver and that the brothers had separated out of eco-
nomic necessity. According to the IJ, these considerations
taken together with what the IJ determined to be inconsisten-
cies between Raj’s factual allegations and the Indian country
reports required an adverse credibility finding.
Second, the IJ ruled that, even if Raj was credible, he was
ineligible for asylum because he had failed to establish a
nexus between the harm that he had suffered and at least one
of the five grounds protected by the asylum provision of the
Immigration and Nationality Act (INA). On this point, the
decision stated as follows: “[Raj] has no political contact nor
associations with any group whatsoever. He had no contacts
with any militants. . . . Here, questions were asked and a con-
fession requested. That was the extent of the testimony about
a nexus about the harm suffered and one of the five enumer-
ated grounds from the respondent.” With respect to his third
finding that Raj had also failed to establish a reasonable fear
of future persecution, the IJ cited only evidence that Raj’s
parents remained in India and had not been harmed by the
separatist factions that had killed Raj’s brother and threatened
the lives of Raj and Rajinder. Based upon these three findings,
the IJ denied Raj’s application for asylum.
Incorporating by reference his analysis of Raj’s asylum
claim, the IJ also denied Raj’s application for withholding of
removal because that standard is more difficult to meet than
the asylum standard. He ruled that because Raj could not meet
the lesser asylum standard, he necessarily could not meet the
stricter standard for withholding of removal.
Lastly, the IJ determined that Raj was not entitled to relief
under CAT. The IJ cited his credibility ruling and further held
that, even if Raj’s allegations were true, the harm that he had
838 KUMAR v. GONZALES
suffered at the police station did not rise to the level of torture
as that term is defined under CAT.
On December 13, 2002, the BIA affirmed the IJ’s decision
without an opinion. Raj filed a motion to reopen, which the
BIA denied. He subsequently petitioned for review of both
rulings. This appeal consolidates the two petitions for review,
although Raj’s brief does not address the denial of his motion
to reopen.
STANDARD OF REVIEW
We review for substantial evidence the BIA’s decision that
an applicant has not established eligibility for asylum.
Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004).
Under that standard, the BIA’s determination must be upheld
if it is supported by reasonable, substantial and probative evi-
dence from the record. Knezevic v. Ashcroft, 367 F.3d 1206,
1210-11 (9th Cir. 2004); see also INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992) (“[t]o reverse the BIA finding we
must find that the evidence not only supports that conclusion,
but compels it”).
We also review under the substantial evidence standard the
BIA’s decision that an applicant has not met the higher bur-
den required for withholding of removal, Thomas v. Ashcroft,
359 F.3d 1169, 1174 (9th Cir. 2004) reh’g en banc granted,
382 F.3d 1154 (9th Cir. 2004), superceded sub nom. Thomas
v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), and the findings
underlying its decision that an applicant is not eligible for
relief under CAT. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th
Cir. 2004). Adverse credibility determinations are also
reviewed under the substantial evidence standard. Tawadrus
v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004).
Where, as here, the BIA adopts the reasoning of the IJ
without an opinion of its own, we review the decision of the
KUMAR v. GONZALES 839
IJ applying the rules set forth above. Zahedi v. INS, 222 F.3d
1157, 1162 (9th Cir. 2000).
ANALYSIS
I. Adverse Credibility Finding
A. Purported Forgery of Ram’s Death Certificate
The IJ found that Raj was not credible, relying in large part
upon his determination that Ram’s death certificate, which
was submitted in support of Raj’s asylum application, was
likely a forgery. The sole reason the IJ posited to support this
conclusion was that the death certificate contained a “peculiar
and uniquely styled” number four that was similar to a num-
ber four handwritten in Rajinder’s asylum application.
Because Rajinder’s application was prepared by Singh, as
Raj’s was, the IJ concluded that Singh had forged the death
certificate.
[1] “We do not accept blindly an IJ’s conclusion that a peti-
tioner is not credible.” Aguilera-Cota v. INS, 914 F.2d 1375,
1381 (9th Cir. 1990). Rather, we examine the record to deter-
mine “whether substantial evidence supports that conclusion,
and . . . whether the reasoning employed by the IJ is fatally
flawed.” Id. Adverse credibility findings may not be based
upon speculation or conjecture. Vera-Villegas v. INS, 330
F.3d 1222, 1231 (9th Cir. 2003). In judging the veracity of
documentary evidence, the IJ must use the same standard he
would in judging the credibility of testimonial evidence: “an
IJ must provide a specific, cogent reason for rejecting [the
evidence], and this reason must bear a legitimate nexus to that
rejection.” Zahedi, 222 F.3d at 1165.
[2] It would be difficult to imagine a more precise example
of “speculation and conjecture” than the IJ’s finding, based
upon nothing more than his own uninformed visual compari-
son of the two number fours at issue, that Singh had forged
840 KUMAR v. GONZALES
Ram’s death certificate. In fact, the date containing the “sus-
pect” number four in Rajinder’s asylum application was not
“4/29/98,” as the IJ stated in his decision, but rather “4/
24/98,” as verified by the corresponding typewritten date on
the following page. Thus, although the IJ was willing to brand
the death certificate a forgery based upon his own visual com-
parative handwriting analysis of a number four in Rajinder’s
asylum application, he misidentified a different number four
in the same date in the same document.
[3] Further, the IJ failed to substantiate his opinion regard-
ing the legitimacy of Ram’s death certificate by submitting
the documents to a handwriting expert or forensic laboratory
for review or testing. Although there is no rule in this circuit
that IJs must consult experts prior to rejecting documentary
evidence, in several cases in which IJs have made adverse
credibility findings based upon forged documents, those find-
ings have been supported by evidence from experts. See, e.g.,
Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910 (9th Cir. 2004)
(INS submitted a report from its forensic document laboratory
stating that the medical certificate at issue was a forgery);
Zahedi, 222 F.3d at 1165 (IJ relied upon a letter from the INS
laboratory which stated that it could not authenticate a death
certificate).
[4] Here, the IJ sought no support for his opinion that the
two “peculiar and unique” number fours were handwritten by
the same person, nor did the government proffer any expert
evidence to support that conclusion. Accordingly, the IJ’s
determination that Ram’s death certificate was forged was
fortified by no evidence other than his own visual handwriting
analysis, which as discussed above, was both uninformed and
inaccurate. The IJ’s conclusion, on this basis, that Ram’s
death certificate was a forgery was nothing more than conjec-
ture unsupported by the evidence in the record. Thus, we are
compelled to reject it.1
1
Were we to offer our own uninformed analysis after examining the var-
ious number fours at issue, we would not find any basis for concluding
KUMAR v. GONZALES 841
[5] The IJ’s finding that Ram’s death certificate was a for-
gery must be rejected on a second ground as well: the IJ failed
to provide Raj with the opportunity to explain the perceived
similarity between the numerals in the death certificate and
Rajinder’s asylum application. See Campos-Sanchez v. INS,
164 F.3d 448, 450 (9th Cir. 1999) (“[T]he BIA must provide
a petitioner with a reasonable opportunity to offer an explana-
tion of any perceived inconsistencies that form the basis of a
denial of asylum.”). In fact, the IJ was obliged not only to
allow Raj to explain the supposed similarity, but also to con-
sider and address that explanation in his decision, which he
failed to do. Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.
2004) (“An adverse credibility finding is improper when an IJ
fails to address a petitioner’s explanation for a discrepancy or
inconsistency.”). The failure on the part of an IJ to allow a
petitioner the opportunity to respond to questions regarding
his credibility, particularly when such questions form the
basis for the denial of asylum, amounts to the denial of due
process. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661
(9th Cir. 2003). There can be no doubt that Raj’s due process
rights were violated here.2
B. Photographs
The IJ also concluded, after comparing photographs in
Raj’s asylum application to those submitted in support of
Rajinder’s application, “that in fact, some of the alleged inju-
that they were written by the same person, let alone sufficient basis to con-
clude with the requisite degree of certitude that they were. However, our
uninformed visual analysis is of no greater probative value than the IJ’s,
and we give it no import here.
2
The brief that Raj submitted to the BIA explains that he was given no
opportunity to respond to the IJ’s speculation of forgery and requests a
“remand[ ] to permit forensic examination of the allege[d] forgery . . . .”
In a case such as this, where more objective proof might be easily
obtained, Raj ought to have been given — as he stated to the BIA — an
opportunity to respond.
842 KUMAR v. GONZALES
ries and photos about them were actually photos of respon-
dent’s brother, and not his at all.” The IJ found that Raj’s
attempt to “pass off” his brother’s injuries as his own was
“consistent with [his] attempts to deceive this Court about the
veracity of his claim to asylum.”
During Rajinder’s testimony, he acknowledged that several
of the photographs that were included in both his and his
brother’s asylum applications depicted injuries suffered by
Raj. Rajinder explained that his application, as well as Raj’s,
was prepared by Singh, and that it was possible that Singh had
inadvertently attached photographs to his application that
were meant to support only Raj’s. There was one photograph
(not “some”), however, that was included in Raj’s asylum
application that showed injuries to Rajinder’s foot. In
Rajinder’s asylum application, that photograph was labeled
“my foot,” whereas it contained no such label in Raj’s appli-
cation. This appears to be the only photograph in Raj’s asy-
lum application that depicts an injury suffered by Rajinder.
In Rajinder’s file, in fact, the other photographs were
labeled as depicting Raj’s injuries, presumably because cor-
roboration of injuries to both brothers was relevant to the
events recounted by Rajinder in his application (events nearly
identical to those described in Raj’s application). The inclu-
sion of a single photograph of Rajinder’s foot injury in Raj’s
set of photographs submitted to the INS is consistent with this
notion. Raj did not, in his testimony or on the photographs
themselves, specifically identify the foot in the picture as his
own, although he did so identify one other photograph. Thus,
any clerical error in the assembly of Raj’s application and
supporting evidence resulted almost surely from a careless
failure by Singh to mark the photographs accurately, not from
an attempt to pass off a single, inconsequential injury of
Rajinder’s as having been incurred by Raj.3 There is no reason
3
We note that Singh prepared Raj’s asylum application in English,
which Raj does not speak. Thus, Raj likely did not, because he could not,
KUMAR v. GONZALES 843
why the preparer would have labeled the photographs in
Rajinder’s file accurately but purposely failed to label simi-
larly the same photographs in Raj’s file, particularly as most
of the photographs in Raj’s file were of his own injuries and
those injuries were the more serious.
[6] Among the extensive evidence submitted in support of
Raj’s asylum application, including evidence of serious inju-
ries suffered by Raj such as a torn muscle that required sur-
gery and crushed fingers, the discrepancy created by a single
unlabeled photograph depicting a minor injury to Rajinder’s
foot is in question. Discrepancies such as the one presented
here that are capable of being attributed to clerical errors may
not form the basis of an adverse credibility finding “unless the
IJ or the BIA specifically explains the significance of the dis-
crepancy or points to the petitioner’s obvious evasiveness
when asked about it.” Shah v. INS, 220 F.3d 1062, 1068 (9th
Cir. 2000). Neither condition is satisfied in this case. The IJ
did not explain his reason for rejecting a clerical explanation
for the failure to label the photographs properly, as was done
in Rajinder’s application. Nor was the petitioner asked for an
explanation, so he was not “evasive” in responding. We con-
clude, therefore, that the IJ’s determination that Raj attempted
to “pass off” his brother’s injuries as his own is not supported
by substantial evidence. Thus, we are compelled to reject this
ground for the IJ’s credibility finding as well.
C. Contact with Rajinder
The IJ stated in his decision that “[i]t is also inconsistent
with credibility for the respondent to lead this Court to
believe, his brother and the respondent made their way to the
United States and then separated.” The IJ’s only support for
review his application before it was submitted. We note also that Raj’s
application contains numerous spelling and grammatical errors, which
suggest that Singh was generally careless in preparing Raj’s application or
was otherwise unqualified or incompetent.
844 KUMAR v. GONZALES
this finding was his opinion that it was “unusual” for Raj not
to know the whereabouts of Rajinder after they had grown up
and fled India together.
In Shah, this circuit ruled that an IJ had improperly dis-
counted a petitioner’s credibility on the basis of his disbelief
that the petitioner and her husband had not received more cor-
respondence than they had submitted from a certain political
party for whom the husband had worked for ten years. 220
F.3d at 1071. The Shah court ruled that such disbelief
amounted merely to speculation and conjecture. Id. In Lopez-
Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996), the IJ found
“astonishing” the petitioner’s contention that he had not been
killed by guerillas after being chased, shot at and beaten. In
that case as well, the court rejected the IJ’s finding, ruling that
the conclusion was not based upon a cogent reason, but rather
upon “personal conjecture about what guerillas likely would
and would not do.” Id.
Similarly here, the IJ’s adverse credibility determination,
insofar as it was based upon his opinion regarding what broth-
ers from India who had grown up and fled India together
might or might not do, was purely conjecture. Further, an
examination of the record reveals that Raj’s testimony regard-
ing his knowledge of the whereabouts of his brother was not
at all “unusual.” Raj testified at his May 25, 2000, hearing
that Rajinder was working with a trucking company some-
where in California and was not easily reachable, that he had
seen him “three or four months ago,” and that he had not
attempted to contact Rajinder prior to the hearing because “I
did not know that he would also be needed here.” Later in the
hearing, the IJ scheduled a status conference for June 9 and
directed Raj to locate his brother prior to that date. At the
June 9 hearing, Raj’s counsel informed the IJ that Raj had
located Rajinder and that he would be able to appear as a wit-
ness in Raj’s case.
[7] As was the case in Lopez-Reyes, the IJ’s finding that it
was “unusual” that Raj did not know where Rajinder was as
KUMAR v. GONZALES 845
of the date of the May, 2000, hearing was impermissibly
based upon personal conjecture rather than supportable,
cogent reasoning.
D. Purported Inconsistencies Between Allegations and
Country Reports
Last, the IJ’s determinations that Raj’s substantive claims
were inconsistent with the factual findings in the Indian coun-
try reports and were implausible are not supported by substan-
tial evidence.
[8] With respect to the IJ’s finding that Raj’s narrative was
inconsistent with the Indian country reports, the IJ stated in
his decision that there was no support in the country reports
for Raj’s claims (1) that the local police in Jammu and Kash-
mir asked him, a civilian, for the whereabouts of Shah, a sus-
pected terrorist, and then compelled him to accompany them
to Shah’s home, and (2) that the police later arrested him
based upon Shah’s statement that Raj was involved in terrorist
activities. A review of the Indian country reports submitted
into evidence in this case compels us to conclude that the IJ’s
findings regarding country conditions are not only unsup-
ported by substantial evidence, they are clearly erroneous.
Although the Indian country reports do not detail identical
incidents to those described by Raj in his sworn affidavit, they
do warn of “deficient police methods” and violent police sup-
pressions of Muslim separatist movements. In Jammu and
Kashmir, the tensions between local authorities and the terror-
ist elements are so severe, local government security forces
have regularly “killed suspected militants and civilians; with
few exceptions, they acted with impunity.” Further, the
authorities act in this regard with “judicial tolerance of the
Government’s heavy-handed antimilitant tactics.”
Second, Raj’s account of the events of January 6, 1998, is
not implausible, and it is certainly not a basis for finding his
testimony not credible. Raj testified that his family owned a
846 KUMAR v. GONZALES
tailoring shop in his village, and that he often would deliver
finished garments to his customers’ homes. Shah’s home was
in very close proximity to the Kumar shop and, although Raj
had never personally delivered anything to Shah, Shah was a
customer and Raj knew where Shah’s house was because he
regularly “used to pass by that way.” Raj also testified that the
officers who accosted him came from the local police station,
which was three to four miles away from his family’s shop
and the Shah residence. It would not be implausible for police
officers to drive three to four miles from their headquarters
into a remote neighborhood looking for a suspected terrorist,
and then to ask an individual from that neighborhood where
the suspected terrorist lived. The IJ’s opinion, unsupported by
any evidence, as to what local police in Jammu and Kashmir
might or might not do in their efforts to find a suspected crim-
inal is based upon speculation and conjecture. Lopez-Reyes,
79 F.3d at 912.
[9] Thus, Raj’s account of the police officers’ treatment of
him during the early morning of January 6, 1998, and his
statements regarding his subsequent arrest and beatings are
both consistent with the Indian country reports cited by the IJ
and are plausible. The IJ’s findings to the contrary, like the
other factual findings underlying his adverse credibility deter-
mination, are not supported by substantial evidence.
In view of the above, Raj’s testimony must be deemed credi-
ble.4
II. Nexus Between Persecution and Protected Ground
In addition to holding that Raj was not credible, the IJ ruled
in the alternative that he had failed to establish past persecu-
tion on the basis of a qualifying protected ground. The IJ’s
4
When our dissenting colleague quotes eleven separate statements from
dissenting opinions, mainly his own, it is not difficult to determine that the
law is not on his side.
KUMAR v. GONZALES 847
ruling relied upon his finding that Raj was a law-abiding citi-
zen with no political contact or affiliation with any terrorist or
militant organization, and thus was not persecuted based upon
any political opinion or association.
[10] It is settled law that an applicant may establish a politi-
cal opinion for purposes of asylum relief by showing an “im-
puted political opinion.” See Sangha v. INS, 103 F.3d 1482,
1489 (9th Cir. 1997). And, we have repeatedly held that an
applicant can establish imputed political opinion based upon
the persecutor’s erroneous belief as to the applicant’s political
affiliation or opinion. See, e.g., Singh v. Ilchert, 63 F.3d 1501,
1508-9 (9th Cir. 1995) (finding an imputed political opinion
where Indian police officers persecuted the petitioner based
upon a false belief that he was affiliated with Sikh militants);
Blanco-Lopez v. INS, 858 F.2d 531, 533-34 (9th Cir. 1988).
[11] Here, the evidence in the record shows that Raj
endured a month-long detention and serious physical abuse as
a result of the Jammu and Kashmir police’s mistaken belief
that Raj was associated with a Muslim terrorist group. The
fundamental fact relied upon by the IJ in ruling that Raj had
failed to establish a nexus between persecution and a pro-
tected ground — that Raj was not in fact a member of a ter-
rorist organization — is irrelevant to the imputed political
opinion analysis. Rather, “the focus of inquiry turns away
from the views of the victim to the views of the persecutor
. . . . If the persecutor attributed a political opinion to the vic-
tim, and acted upon the attribution, this imputed view
becomes the applicant’s political opinion as required under
the Act.” Sangha, 103 F.3d at 1489 (citation omitted). The
facts in this case are substantively indistinguishable from
those in Singh and Sangha; the evidence is clear that Raj was
detained and physically assaulted on the basis of a political
opinion imputed to him. Thus, we must reject the IJ’s finding
that Raj did not establish a nexus between his past persecution
and a protected ground; the record compels us to rule that Raj
848 KUMAR v. GONZALES
has suffered persecution on the basis of an imputed political
opinion.
III. Reasonable Fear of Future Persecution
The IJ also ruled that Raj had failed to establish a reason-
able fear of future persecution. The IJ found, solely based
upon evidence showing that Raj’s parents had not been
harmed since he fled the country, that Raj’s fear of persecu-
tion by local law authorities in Jammu and Kashmir was
“speculative.”
[12] In order to establish a reasonable fear of future perse-
cution, an applicant must show that his fear of persecution is
both subjectively genuine and objectively reasonable. Hoxha
v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2002). An applicant
can satisfy the subjective component of the two-part test by
credibly testifying that he genuinely fears persecution.
Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). He
can satisfy the objective by “showing [ ] credible, direct, and
specific evidence in the record, of facts that would support a
reasonable fear of persecution.” Ghaly v. INS, 58 F.3d 1425,
1428 (9th Cir. 1995) (citation and quotation marks omitted).
That fear “must be based on an individualized rather than gen-
eralized risk of persecution.” Hoxha, 319 F.3d at 1182.
[13] Because we find that Raj is credible, and because he
has testified that he believes that the local police in Jammu
and Kashmir will kill him if he returns to India (a belief that
is supported by the letter from his parents so stating), he has
satisfied the subjective component of the well-founded fear
test.
[14] Further, Raj has also satisfied the objective reason-
ableness component of the test. According to the Indian coun-
try reports, local security forces in Jammu and Kashmir
attempting to combat insurgent elements regularly use exces-
sive force, including torture and rape, when dealing with
KUMAR v. GONZALES 849
civilians, and they summarily kill suspected terrorists “with
impunity,” including those already in police custody. Raj’s
fear of such persecution is certainly based upon individualized
risk — the police’s erroneous belief that he was a terrorist
caused him to be subjected to a month-long detention that
included severe physical attacks and threats to his life. We
may consider the reasonableness of Raj’s fear “in the politi-
cal, social, and cultural milieu of the place where [he] lived,
and even a ten percent chance of persecution may establish a
well-founded fear.” Khup v. Ashcroft, 376 F.3d 898, 904 (9th
Cir. 2004) (citations and quotation marks omitted). Here, the
acute social and political tensions in Jammu and Kashmir
considered together with Raj’s prior experience as the victim
of police violence and the letter from his parents stating that
local security forces have threatened to kill him if he returns
to India require a finding that he has met his burden of show-
ing a well-founded fear of future persecution.
The fact that Raj’s parents have not been harmed in his
absence does not compel a different result. This court did hold
in Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001), that
“[a]n applicant’s claim of persecution upon return is weak-
ened, even undercut, when similarly-situated family members
continue to live in the country without incident.” However,
the facts in Hakeem are entirely distinguishable from those in
this case; critically, the family members at issue in Hakeem
were in fact “similarly situated,” whereas here they are not. In
Hakeem, the petitioner asserted that he would be killed upon
returning to Pakistan because, according to the law as decreed
in the Koran, an individual who changes his religion, as the
petitioner had done, is automatically sentenced to death. 273
F.3d at 817. The court rejected Hakeem’s claim, in part
because several members of his family who had remained in
Pakistan and had also changed their religion had not been per-
secuted. Id.
[15] Here, there is no evidence that the police in Jammu
and Kashmir suspect Raj’s parents of associating with the
850 KUMAR v. GONZALES
same Muslim separatist faction to which they accuse Raj of
belonging. In other words, the political opinion that the Indian
police have imputed to Raj and which forms the basis of Raj’s
past persecution has not been imputed to Raj’s parents; thus,
they are not “similarly situated,” and it is irrelevant that they
have not suffered from the treatment that Raj fears.
[16] The IJ’s finding that Raj failed to establish a well-
founded fear of future persecution is not supported by sub-
stantial evidence.
IV. Withholding of Removal
The IJ’s denial of Raj’s application for withholding of
removal relied exclusively upon his ruling denying Raj’s asy-
lum application. However, we have reversed the IJ’s adverse
credibility finding and rejected his rulings that Raj failed to
establish (1) past persecution on the basis of a protected
ground and (2) a reasonable fear of future persecution.
Because the IJ failed to consider Raj’s claim for withhold-
ing of removal on its merits, we remand that claim to the BIA
so that it may now consider it in light of our holdings herein.
V. Relief Under CAT
The IJ ruled that Raj was not entitled to relief under CAT
because, inter alia, the harm that he claimed to have suffered
in the Jammu and Kashmir police station did not rise to the
level of torture as defined under the statute.
Although Raj undeniably suffered abuse in the Jammu and
Kashmir police station, we are unable to conclude that the IJ’s
ruling that it did not amount to torture was not supported by
substantial evidence. See Gui v. INS, 280 F.3d 1217, 1230
(9th Cir. 2002). Thus, we affirm the BIA’s determination that
Raj is not entitled to relief under CAT.
KUMAR v. GONZALES 851
VI. Motion to Reopen
Because Raj’s appellate brief does not address the BIA’s
denial of his motion to reopen, we consider argument on that
issue waived. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.
1998) (“[W]e will not ordinarily consider matters on appeal
that are not specifically and distinctly argued in appellant’s
opening brief.”) (citation and quotation marks omitted).
CONCLUSION
[17] We reverse the IJ’s adverse credibility finding and
hold that Raj has demonstrated both past persecution on
account of an imputed political opinion and a well-grounded
fear of future persecution. Accordingly, we find Raj statu-
torily eligible for asylum, and we remand for an exercise of
discretion on his asylum claim and for further consideration
of his withholding of removal claim. We affirm the BIA’s
denial of Raj’s application for relief under CAT. We deny
Raj’s petition for review of the BIA’s denial of his motion to
reopen.
Petition for review is GRANTED in part, DENIED in part,
and REMANDED for further proceedings.
KOZINSKI, Circuit Judge, dissenting in part:
My colleagues grumble that an immigration judge
shouldn’t pretend to be a “handwriting expert” or a “forensic
laboratory.” Maj. at 840. But a circuit judge shouldn’t pretend
to be an immigration judge. This is yet another tiresome “ex-
ample of the nitpicking we engage in as part of a systematic
effort to dismantle the reasons immigration judges give for
their decisions.” Abovian v. INS, 257 F.3d 971, 980 (9th Cir.
2001) (Kozinski, J., dissenting from denial of rehearing en
banc) (listing other examples).
852 KUMAR v. GONZALES
1. After hearing the testimony of Raj Kumar and his
brother Rajinder, the immigration judge (IJ) found as follows:
This Court is of the opinion that [Raj Kumar] sub-
mitted fraudulent documents to bolster his claim to
asylum.
....
As seen in collective Exhibit 4, [Raj] attempted to
pass off as his own injuries, the photos submitted as
part of this Exhibit. . . . [I]n fact, some of the alleged
injuries and photos about them were actually photos
of [Raj’s] brother, and not his at all. This attempt to
pass off as his own injuries, is consistent with [Raj’s]
attempts to deceive this Court about the veracity of
his claim to asylum.
Based on this finding of immigration fraud and other incon-
sistencies in Raj’s testimony and evidence, the IJ made an
adverse credibility determination and, not believing Raj’s
story, denied his claim for asylum.
Both Congress and the Supreme Court have instructed that
an adverse credibility finding is “conclusive unless any rea-
sonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-
Zacarias, 502 U.S. 478, 481 & n.1 (1992). Our role is not to
substitute our own judgment regarding an asylum applicant’s
credibility for that of the IJ; for us to overturn an IJ’s adverse
credibility finding, the applicant must present evidence that
not only supports a finding of credibility, “but compels it.” Id.
at 481 n.1; Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003). And, when an IJ compiles multiple reasons for disbe-
lieving the applicant, we must accept the IJ’s finding even if
only one reason that goes to the heart of the applicant’s claim
is supported by substantial evidence. See Li v. Ashcroft, 378
F.3d 959, 964 (9th Cir. 2004). The majority dutifully recites
KUMAR v. GONZALES 853
this standard of review, see maj. at 838-39, but its analysis
belies the deference an IJ is due. See Quan v. Gonzales, 428
F.3d 883, 890 (9th Cir. 2005) (O’Scannlain, J., dissenting)
(“[T]he court has substituted its independent analysis of the
record for that of the Immigration Judge . . . and, in so doing,
has exceeded its authority and intruded upon the proper role
of the fact finder.”); Jahed v. INS, 356 F.3d 991, 1002 (9th
Cir. 2004) (Kozinski, J., dissenting) (“[O]ur court seems bent
on denying the BIA the deference a reviewing court owes an
administrative agency.”).
The heart of Raj Kumar’s asylum application is his claim
that he suffered repeated beatings and sustained multiple inju-
ries at the hands of Indian police. To support his contentions,
Raj submitted, along with his asylum application, photo-
graphs allegedly depicting his injuries. He also presented
these photographs as evidence in his hearing before the IJ.
Further, after some prodding by the IJ, he presented his
brother Rajinder—who had filed his own asylum application,
with photographs—to corroborate his claim.
It is undisputed that four of the five photographs Raj sub-
mitted were identical to the photographs Rajinder had submit-
ted in his own asylum application. The IJ did not need to
engage in “speculation or conjecture,” maj. at 839, to see that
the photos are the same; he needed only compare the two sets
of photos in the record. And although we don’t know which
brother’s photos were actually depictions of the other broth-
er’s injuries—or whether either set of photos depicted neither
brother at all—we do know that both sets of photos could not
be what the Kumar brothers claimed them to be.
The majority concedes that at least one of the photographs
in Raj’s application “depicts an injury suffered by Rajinder.”
Maj. at 842. And it does not dispute that the injuries Raj
claims to have suffered at the hands of the Indian police are
the “heart” of his asylum application. This alone is substantial
evidence supporting the IJ’s findings. See Li, 378 F.3d at 962
854 KUMAR v. GONZALES
(“An adverse credibility ruling will be upheld so long as iden-
tified inconsistencies go to the heart of the asylum claim.”
(alteration and internal quotation marks omitted)). Cf. Men-
doza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.
2003) (“Minor inconsistencies in the record that do not relate
to the basis of an applicant’s alleged fear of persecution, go
to the heart of the asylum claim, or reveal anything about an
asylum applicant’s fear for his safety are insufficient to sup-
port an adverse credibility finding.”).
Yet the majority concludes, inexplicably, that Raj did not
“attempt[ ] to ‘pass off’ his brother’s injuries as his own.”
Maj. at 843. It then proceeds to engage in its own “specula-
tion and conjecture” about how the photograph of Rajinder’s
injury might have found its way into Raj’s asylum applica-
tion, and been submitted as evidence during the course of
Raj’s removal hearings: There might very well have been a
good explanation; it’s possible it was the result of careless-
ness; it could have been a clerical error. See id. at 842-43.
Were the members of the majority sitting as immigration
judges, these hypothetical excuses might have given them a
basis for concluding that Raj’s testimony was believable. But
they do nothing to undermine the uncontroverted evidence
that Raj submitted at least one photo of his brother’s injuries
and claimed it as his own, and they certainly do not render
irrational the IJ’s conclusion that the phony photograph was
part and parcel of a pattern of deception.
Raj had plenty of opportunities to explain why the same
photographs appeared in both applications. He could have
offered an explanation when he submitted the photographs
into evidence at the hearing, or when he described his injuries
on direct examination. Further, when the duplicative photo-
graphs were brought to the IJ’s attention during brother
Rajinder’s testimony, Raj and his attorney were put on notice
of the cause for concern:
[INS ATTORNEY] TO RAJINDER KUMAR
KUMAR v. GONZALES 855
Q: Sir, would you look at Exhibit 6, see if you rec-
ognize that document?
A: Yes.
Q: What is that document?
A: That is my, I, I’m the one who filled this out.
Q: It’s an application for asylum?
A: Yes.
Q: And would you look at the photographs. Do you
recognize that photograph?
A: Yes.
Q: And who is that of?
A: This is of my foot.
Q: And would you identify this, second photograph?
A: Yes.
Q: What is it?
A: That’s my brother’s—
Q: Your brother’s what?
A: The stitches on his (indiscernible).
Q: And a third photograph, would you identify that?
A: That’s also my brothers.
856 KUMAR v. GONZALES
Q: Why are you putting your brother’s photographs
in your file?
A: I did not, maybe it was by mistake. I did not do
it myself.
....
Q: Sir, I’m showing you a photograph of a foot, in
your brother’s file. Would you identify the photo-
graph?
A: Yes. That’s my foot.
Q: You know why your photographs are in your
brother’s file?
A: I give this, give this to a person named
Mohamed. And he put everything, maybe it was mis-
take or something.
Despite hearing this exchange with his brother, Raj offered
no explanation for the discrepancies, and did nothing to con-
firm Rajinder’s conjecture that “maybe it was [a] mistake or
something.” Raj’s attorney redirected Rajinder for almost an
hour, but avoided any mention of the photographs. The IJ then
granted Raj a continuance so his attorney could further review
Rajinder’s documents; when the hearing reconvened a month
later, Raj’s attorney stated that Rajinder’s testimony had been
“sufficient,” and that he didn’t need to ask any more ques-
tions. Finally, when asked whether Raj wanted to present
“anything further [in] the case in chief,” Raj’s attorney
responded, “No, Your Honor,” and waived closing argument.
After the IJ made his adverse credibility determination, Raj
had a further opportunity to address this issue in his appeal to
the BIA. Yet in his brief to the BIA, Raj did not argue that
the photographs were erroneously included in the wrong
KUMAR v. GONZALES 857
application, or that he was unaware of the inclusion of his
brother’s photographs in his asylum application. Instead, he
made only a single unilluminating remark in the “Facts” sec-
tion of the brief: His immigration consultant “put all the pho-
tos of the injuries the two brothers suffered into each
application without distinguishing them.” Raj doesn’t claim,
even in his brief, that he was unaware his brother’s injury was
being passed off as his own.
The majority seizes on the single unsworn sentence in Raj’s
brief to the BIA, giving it more weight than eleven separate
sworn hearings in front of the IJ. The majority even blames
the IJ for failing to ask Raj for an explanation, as if his own
counsel was a potted plant. Maj. at 843-44. Finally, the major-
ity invents its own version of what must have happened, spin-
ning tales of mea culpas, accidents, and “clerical error[s]” that
appear nowhere in the record. See id. at 842. It’s no wonder
Raj didn’t bother to explain the inconsistencies to the IJ; he
must have predicted—accurately, as it turns out—that the
Ninth Circuit would do it all for him.
2. The majority next holds that “the IJ’s finding that it was
‘unusual’ that Raj did not know where Rajinder was as of the
date of the May, 2000, hearing was impermissibly based upon
personal conjecture rather than supportable, cogent reason-
ing.” Id. at 844-45. For support, the majority points out that
“Rajinder was working with a trucking company . . . and was
not easily reachable,” and recounts Raj’s seemingly reason-
able testimony that he “did not know that [Rajinder] would
also be needed” at the hearing. Id. at 844.
But the majority paints an incomplete picture, and mis-
characterizes the IJ’s findings. The IJ didn’t find it implausi-
ble that a long-distance trucker might be difficult to reach; he
found implausible Raj’s claim that he had no way of contact-
ing Rajinder: “[Raj] was asked a series of questions about his
brother and his whereabouts, and his claim to asylum. Basi-
cally, [Raj] testified he did not know where his brother was,
858 KUMAR v. GONZALES
nor where he lived or for that matter, his home telephone
number.” Even long-distance truckers have homes and tele-
phone numbers, and it’s highly implausible that the two broth-
ers, who escaped torture and traveled thousands of miles
together to get to the United States, would then have sepa-
rated without giving each other any contact information.
The IJ’s skepticism about Raj’s claim that Rajinder was
untraceable proved well-founded: When the IJ gave Raj only
15 days to locate his brother and bring him to testify, Rajinder
magically materialized.1 Once Rajinder showed up at the
hearing, the INS was able to secure his consent so the IJ could
compare Rajinder’s asylum application to Raj’s. As the IJ
stated:
The reason [Raj’s] testimony about his brother [is]
salient to his claim, is that [Raj led] this Court to
believe he was separate and distinct from his brother,
and that they were on their own. Only after
[Rajinder’s asylum application] was entered into the
record does it show up that both claims were pre-
pared by the same individual . . . . Only after the
brother’s application was presented, did it come to
light the photos in one, were used in both. And that
some of the alleged injuries to Raj were actually,
allegedly Rajinder’s. . . . That may explain why
[Raj] was not inclined to tell this Court, candidly,
about the fact that both applications (his and his
brother’s) were prepared by the same person. These
1
After Raj told the IJ that he didn’t know where Rajinder was, and
hadn’t asked Rajinder to testify, the IJ said, “Sir, you want me to believe,
that the same brother who was detained, beaten, threatened is in the United
States, and you didn’t know that he would be a helpful witness to you. Is
that w[hat] you want me to believe? . . . Well, sir, I just don’t understand
a percipient witness, who had the same problems, in the same family, and
he’s not produced in the case in chief. Very difficult for me to understand,
sir.” The IJ then continued the hearing to “allow [Raj] time to find [his]
brother.”
KUMAR v. GONZALES 859
discoveries also help explain why the respondent did
not want this Court to scrutinize both applications
together.
In other words, Raj had claimed he and Rajinder had sepa-
rated after they got to the United States. He did this in order
to explain why Rajinder—who could obviously corroborate
Raj’s story—was absent from Raj’s asylum hearing. When
the IJ refused to buy Raj’s explanation, Rajinder showed up
and his presence enabled the IJ to compare the two applica-
tions side-by-side. It was only at that point that the IJ was able
to see that the same photographs were being offered as evi-
dence in multiple asylum applications, and that the two appli-
cations were drawn up by the same individual, on the same
day, putting the lie to Raj’s claim that he and his brother had
gone their separate ways after coming to America.
This is the nub of the IJ’s reasoning, which the majority
ignores, preferring to nitpick the IJ’s isolated statements. But
the duplicitous photographs and the alleged inability to locate
Rajinder were not disconnected; they were part and parcel of
a single fraud that a factfinder, who sees the lie unfolding
before his very eyes, is uniquely qualified to identify. Having
seen that (1) Raj claimed to be unable to locate his brother,
(2) Raj was indeed able to locate Rajinder within 15 days, and
(3) Rajinder’s testimony revealed their deception, the IJ con-
cluded that Raj had intentionally been trying to avoid produc-
ing his brother. Far from being “speculation and conjecture,”
this was a permissible inference for the IJ to draw based on
“supportable, cogent reasoning.” And it strongly supports the
IJ’s finding that inclusion of the false photographs was no
mistake but a calculated fraud.
3. Even the majority’s analysis of the “Purported Forgery
of Ram’s Death Certificate,” maj. at 839-41, is nothing more
than a transparent effort to “impos[e] ever more stringent
standards on how [IJs and the BIA] must perform their func-
tions.” Abovian, 257 F.3d at 971. The IJ may not have had a
860 KUMAR v. GONZALES
lot of evidence to buttress his conclusion that the death certifi-
cate was a forgery, but—certainly in light of the other decep-
tions being perpetrated by Raj and Rajinder—the majority has
pointed to nothing that would compel a contrary conclusion.
See Elias-Zacarias, 502 U.S. at 481 n.1; Farah, 348 F.3d at
1156. Instead, the majority simply announces that an “unin-
formed visual” inspection of the document by the IJ was
insufficient. Maj. at 839. Although the majority disclaims any
“rule in this circuit that IJs must consult experts prior to
rejecting documentary evidence,” id. at 840, that is precisely
what the majority requires; without such an expert’s opinion,
the IJs determination will simply be written off as “conjec-
ture,” id. at 840. This addition to the already-crushing burden
with which our court has saddled IJs is unsupported by law
or precedent.
4. Finally, not content merely with finding the adverse
credibility determination unsupported by substantial evidence,
the majority goes on to conclude that the IJ’s “fail[ure] to pro-
vide Raj with the opportunity to explain” the discrepancies in
his application “amounts to the denial of due process.” Maj.
at 841. Raj does not allege a due process violation in his peti-
tion for review, and the majority’s unprompted decision to
find one is unsupported by our caselaw; it is just another
effort to “whittle away the authority and discretion of immi-
grations judges and the BIA.” Jahed, 356 F.3d at 1007 (quot-
ing Abovian, 257 F.3d at 971) (internal quotation marks
omitted).
We have previously held that adverse credibility determina-
tions amount to due process violations in two situations, both
relating to the BIA’s appellate review of an IJ’s decision. The
first occurs when the IJ finds an applicant credible, but the
BIA makes an adverse credibility determination on review.2
2
I have already lodged my disagreement with this nonsensical definition
of due process: “[W]hat kind of unfairness can there be when the BIA uses
the petitioner’s own words against him?” Abovian, 257 F.3d at 972-73.
KUMAR v. GONZALES 861
In that situation, the BIA violates the applicant’s due process
rights if it does not give him advance notice that his credibil-
ity is at issue, and afford him an opportunity to explain the
perceived discrepancies. See Campos-Sanchez v. INS, 164
F.3d 448, 450 (9th Cir. 1999). Second, if the IJ makes no
explicit credibility finding at all, the BIA may not make an
independent adverse credibility determination without giving
the applicant notice and an opportunity to be heard. See Men-
doza Manimbao, 329 F.3d 655, 662 (9th Cir. 2003); Abovian
v. INS, 219 F.3d 972, 975, 980 (9th Cir.), amended by 228
F.3d 1127 and 234 F.3d 492 (2000), reh’g en banc denied by
257 F.3d 971 (2001).
The supposed purpose of these holdings is to ensure that an
applicant has notice of the need to defend his credibility in
front of the BIA.3 When an asylum applicant is before the IJ,
however, he is already on notice that his credibility is at issue;
one of the primary purposes of an asylum hearing is to deter-
mine if the asylum seeker is credible. It is the applicant’s bur-
den at the hearing to prove he should be believed. See 8
C.F.R. § 208.13(a) (burden of proof to establish eligibility for
asylum is on the applicant). The IJ has no special burden to
“provide [the applicant] the opportunity to explain” why he
should be deemed credible. Maj. at 841. That is the very rea-
son the applicant is in front of the IJ in the first place—the
hearing is his opportunity. And, if at the conclusion of the
This is a “constitutional rule [that] exists nowhere outside the Ninth Cir-
cuit.” Id. at 972. Whereas I had at least taken solace in the fact that, “[i]f
the IJ had . . . chosen to disbelieve petitioner, he would have had no con-
stitutional right to get back on the stand and patch up his story,” id. at 973
(emphasis added), this distinction is now out the window. Pretty soon,
every denial of asylum will amount to a denial of due process.
3
In a third line of cases, we have held that when an IJ makes an adverse
credibility determination, and the BIA affirms but on different grounds,
due process is satisfied because the applicant was on notice that credibility
was an issue that would be before the BIA. See Pal v. INS, 204 F.3d 935,
938-39 (9th Cir. 2000).
862 KUMAR v. GONZALES
hearing, the IJ deems the applicant incredible, the applicant—
now on notice that his credibility is in doubt—has the oppor-
tunity to appeal such a decision to the BIA.4
In fact, Raj did appeal the IJ’s decision regarding the death
certificate to the BIA, and the BIA upheld the IJ’s adverse
credibility determination anyway. Raj may not like the BIA’s
decision, but the sufficiency of the process Raj received is not
dependent on a favorable result.
5. The larger problem with the majority’s opinion is its
know-it-all approach, an error oft repeated when our circuit
reviews immigration cases in which an IJ has made an
adverse credibility determination.5 First, the majority lays out
the applicant’s story as if it were the gospel truth, making it
seem like denial of rehearing will cause a huge miscarriage of
justice. Then the majority picks apart the IJ’s findings piece
by piece, scrutinizing his every sentence as if it is completely
unconnected to the rest of his opinion. Don’t agree with the
IJ that the applicant is lying? Not to worry; just label the IJ’s
finding “speculation and conjecture.” See maj. at 839, 840,
844, 844-45; Vera-Villegas v. INS, 330 F.3d 1222, 1231 (9th
4
We have held that, if an applicant gives an explanation for inconsisten-
cies in his testimony or his supporting evidence, and the IJ neglects to
address the explanation given, the IJ’s adverse credibility determination
should be reversed as unsupported by substantial evidence. See Kaur v.
Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004); Hakeem v. INS, 273 F.3d
812, 816 (9th Cir. 2001). But this is quite different from holding there is
a due process violation in such a situation. And it is different still from
requiring an IJ to specifically ask an applicant to provide an explanation
in the first place.
5
I am not the first of our circuit’s judges to point this out; nor, I fear,
will I be the last. See, e.g., Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th
Cir. 2005) (O’Scannlain, J.) (“The Supreme Court has repeatedly
instructed us on the proper standard to apply when reviewing an immigra-
tion judge’s adverse credibility determination. Time and again, however,
we have promulgated rules that tend to obscure that clear standard and to
flummox immigration judges, who must contort what should be a simple
factual finding to satisfy our often irreconcilable precedents.”).
KUMAR v. GONZALES 863
Cir. 2003). Finding it difficult to dispute that the applicant is
lying? No problem; just label the inconsistencies “minor,” or
“merely incidental to [the] asylum claim.” See Abovian, 257
F.3d at 979; id. at 978 (listing cases). Having trouble arguing
with a straight face that the applicant’s lie doesn’t go to the
heart of his claim? No need to fret; just announce a due pro-
cess violation. See maj. at 841. The net effect is that any asy-
lum applicant who is a skillful enough liar—and many who
aren’t—must be believed no matter how implausible or far-
fetched their story. See, e.g., Abovian, 219 F.3d at 982 (Wal-
lace, J., dissenting) (applicant alleged “that at least fifteen
times in one year he was taken to a hotel room and asked in
person, by the president of [Armenia], to join the KGB”). It
also means that IJs, who are doubtless chary of being vilified
by august court of appeals judges, become even more reluc-
tant to make adverse credibility findings, even when they
have good reason to believe the asylum applicant is lying.
None of this bears any resemblance to administrative law,
and none of it finds support in the statutes Congress has given
us to apply, or the rules the Supreme Court has instructed us
to follow. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per
curiam); Elias-Zacarias, 502 U.S. at 481 & n.1. Although I
am bound to follow our circuit’s precedents, I cannot be
forced to like them, or to pretend that they represent the
proper fulfillment of our judicial role.
I am dissenting in this case, rather than concurring, how-
ever, because even our insubordinate precedents do not sup-
port the absurd result the majority has reached. Asylum
claims are often difficult because “[t]he specific facts support-
ing a petitioner’s asylum claim—when, where, why and by
whom he was allegedly persecuted—are peculiarly within the
petitioner’s grasp. By definition, they will have happened at
some time in the past—often many years ago—in a land far,
far away.” Abovian, 257 F.3d at 976. This is not such a case.
The IJ’s adverse credibility finding here is based on fraud that
has taken place recently, here in the United States, as part of
864 KUMAR v. GONZALES
the asylum application process. The IJ caught the Kumar
brothers red-handed mocking the integrity of our immigration
procedures. Once the IJ found that they had committed immi-
gration fraud, he had every right to disbelieve the aspects of
their story that did take place long ago and far away, as there
is nothing to corroborate that story beyond the Kumar broth-
ers’ good word and some documents they produced. Our
jurisprudence instead allows asylum applicants to manufac-
ture evidence, and forces IJs to swallow it. We do not treat
other trial judges with such disdain and disrespect, and there
is no justification for doing so when immigration judges are
involved.
* * *
The IJ’s finding that Raj “attempted to pass off [his broth-
er’s injuries] as his own injuries” is supported by substantial
evidence. Based on this finding alone, the IJ was justified in
making an adverse credibility determination and concluding
that “[f]raudulent documents are being used to support [Raj’s]
claim to asylum.” If this is not good enough to support an IJ’s
adverse credibility determination, then nothing short of the
applicant admitting “I’m a big fat liar” will do—and maybe
not even that. This is not the law, and I refuse to follow my
colleagues in making it so. Rather, I would uphold the IJ’s
adverse credibility determination, and deny Raj’s petition for
review.