Gill v. Holder , 481 F. App'x 315 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 01 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SURJIT SINGH GILL, No. 08-70445
Petitioner, Agency No. A099-357-639
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 19, 2012
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Surjit Singh Gill petitions for review of the dismissal by the Board of
Immigration Appeals of his appeal from the order of removal entered by the
Immigration Judge following her denial of asylum, withholding of removal, and
relief under the Convention Against Torture. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
When the BIA’s conclusion is guided by the IJ’s decision, as it is here, our
review includes both the BIA’s and IJ’s decisions. Delgado v. Holder, 648 F.3d
1095, 1108 n.18 (9th Cir. 2011) (en banc).
“Adverse credibility findings are reviewed under the substantial evidence
standard and ‘will be upheld unless the evidence compels a contrary result.’”
Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010) (quoting Don v. Gonzales,
476 F.3d 738, 741 (9th Cir. 2007)). Some of the reasons the IJ gave in support of
Gill’s adverse credibility finding cannot withstand scrutiny, but “we must uphold
the IJ’s adverse credibility determination so long as even one basis is supported by
substantial evidence.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). It was
reasonable for the agency to find Gill incredible based on his inconsistent
statements about the number of people that were arrested with him on June 6,
2004. In the period between his asylum interview and removal hearing, the
number of people that were allegedly arrested with Gill shrank from twenty to
twenty-four, to nine or ten. It was not unreasonable for the IJ to conclude that fact
would not be forgotten if Gill was really describing what happened to him.
Gill’s right to due process was not violated by the IJ’s refusal to receive Dr.
Mahmood’s verbal testimony in place of her written declaration. “Requiring
evidence to be presented by declaration is an accepted and encouraged technique
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for shortening bench trials.” In re Gergely, 110 F.3d 1448, 1452 (9th Cir. 1997)
(quotation marks omitted). While an IJ’s refusal to hear live testimony could
constitute a due process violation in some circumstances, see, e.g., Lopez-Umanzor
v. Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005), Gill was not prejudiced in any
event because Dr. Mahmood could not have provided any information about Gill’s
conflicting reports regarding the number of people with whom he was arrested.
The BIA did not explicitly address his CAT claim, as it should have.
However, the BIA need only “provide a comprehensible reason for its decision
sufficient for us to conduct our review and to be assured that the petitioner’s case
received individualized attention.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.
1995). The IJ found Gill ineligible for CAT relief for two reasons: the adverse
credibility determination, which meant that he had not proven that it was more
likely than not he would be tortured if returned to India, and his ability to relocate
within India.
In addition to upholding the IJ’s credibility determination, her finding that
Gill was unable to demonstrate past persecution, and her finding that Gill was not
entitled to statutory relief or protection, the BIA concluded the IJ “correctly
determined that in any event, the respondent was able to relocate.” The BIA
contemplated the basis for Gill’s CAT claim and rejected it. That is sufficiently
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comprehensible for our review.
PETITION DENIED.
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FILED
Gill v. Holder, No. 08-70445 AUG 01 2012
MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur in all of the majority’s disposition, except for its treatment and
denial of Gill’s claim under the Convention Against Torture (“CAT”), from which
I dissent.
The majority concedes that “[t]he BIA did not explicitly address [Gill’s]
CAT claim, as it should have.” Yet, it goes on to reject the claim on its merits for
reasons the BIA itself did not rely on. We may affirm the BIA only on grounds set
forth in the opinion under review. See Recinos De Leon v. Gonzales, 400 F.3d
1185, 1189 (9th Cir. 2005) (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97
(1947)). The majority’s reliance on grounds not articulated in either the BIA’s
decision or in that portion of the Immigration Judge’s decision concerning the
CAT claim is a clear violation of the venerable Chenery principle.
The BIA is not free to ignore arguments raised by a petitioner and, in
disposing of a CAT claim, must provide a statement of its reasons for denying
relief that is adequate for this Court to conduct its review. Antoyan v. Holder, 642
F.3d 1250, 1256 (9th Cir. 2011); Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th
Cir. 2005). Here, the BIA entirely failed to address Gill’s CAT claim, much less to
provide a cogent statement of its reasons for denying the claim.
Accordingly, because I would remand Gill’s CAT claim to the BIA for
further proceedings, see She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 2010), I
respectfully dissent from that portion of the disposition.
As to Gill’s remaining contentions, I concur in the decision.
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