*1 1081 (which not), factor” com ous “impermissible court’s it was state California Court reasonably is most understood as ment Appeal’s “objectively decision was not reflecting court’s view buttons unreasonable.” bearing photograph victim’s should not petitioner The also asserts a number of The a courtroom. comment did be worn other claims that he argues merit habeas or change the buttons make them not reject well, relief. I would those claims as Moreover, something they not. were and thus would affirm the district court. court’s comment that state additional buttons did not defendant ‘with “brand[] ” guilt’ an unmistakable mark of is most
reasonably an explanation understood as not “so inherently
that the buttons were
prejudicial pose unacceptable as to fair right
threat to a trial.” Hol [the]
brook, 475 106 U.S. at S.Ct. 1340. sum, I do not the decision believe SINGH, Petitioner, Jarnail Appeal the California Court of was “con to, trary ap involved unreasonable of, clearly
plication established Federal GONZALES,* Attorney Alberto R. law, Supreme as determined Court General, Respondent. United See of the States.” 28 U.S.C. 2254(d)(1). § The state court’s decision No. 02-74426. law, “contrary to” such any federal “ Appeals, United States Court of ‘appl[y] because state court did Circuit. Ninth governing rule that contradicts the law set ” cases,’ [Supreme forth in nor did Court] Argued July and Submitted 2004. “ court ‘confront[ ] the state set of facts April Filed materially indistinguishable that are from Supreme]
a decision of [the Court and nevertheless at a result arrive[ ] different ” [Supreme
from precedent.’ Court] Lock Andrade, 63, 73,
yer v. 538 U.S. 123 S.Ct. (2003)
1166,
Williams 529 U.S. (2000)). 146 L.Ed.2d S.Ct.
Nor does the state court’s decision
abridge application” “unreasonable 2254(d)(1). of 28
clause U.S.C. “The application’ requires
‘unreasonable clause
the state court to be than decision more
incorrect erroneous. state court’s
application clearly established law must objectively Lockyer,
be unreasonable.” (internal
538 U.S. 123 S.Ct. omitted). Here,
citations even if errone- * States, pursuant R.App. R. pre- Alberto Gonzales is substituted for his United Fed. decessor, 43(c)(2). Attorney John P. General
inspection in June applied 1994. He in November citing persecu tion the Indian police sup because he ported separatism. Sikh The Immigration (“U”) Judge denied applications *3 for asylum, withholding removal, of and relief under the Against Convention Tor (“CAT”), ture making after an adverse credibility determination. The Board of (“BIA”) Immigration Appeals streamlined Singh’s appeal and affirmed “the results of the decision pursuant below” to 8 C.F.R. 1003.1(e)(4) (2002). We review the IJ’s decision as the final agency determination, see Falcon Carriche v. Ashcroft, Cir.2003), grant petition review, and remand.
BACKGROUND Singh’s asylum application and testimo- ny in support of his claims for relief from removal, together, taken stated the follow- ing: Singh an supporter active Akali Dal party Mann and the All India Sikh Student Federation. On four occa- sions, police the Indian persecuted him advocacy because of his for a Sikh home- land arrest, of Khalistan. After his final George T. (argued) Heridis and Earle A. he hiding. went into His wife and father Sylva, Associates, Francisco, Rai and San because, were harassed and arrested while CA, petitioner. for the hiding in going and “to different places,” Dimple Gupta (argued) and Allen W. Singh report did not police in accord Hausman, DC, Washington, for the re- with a condition his last release from spondent. support detention. applications of his relief, Singh provided documentary evi-
dence, including affidavit from fa- his ther. Singh’s After hearing, removal IJ Anna FLETCHER, LEAYY, Before B. Ho issued a written in decision which she
BERZON, Judges. Circuit made an explicit deter- BERZON; Opinion by Judge mination, specifying grounds: four by Judge Concurrence LEAYY 1) Singh omitted two details concerning BERZON, Judge. Circuit his first arrest that were recounted Singh, Jarnail a native and supporting citizen of father’s affidavit: a false India, entered the United States without charge spousal promise abuse and a [during that he errors On interview].”
made he was released would when separatists. boycott, not associate with Sikh of the election the brief issue [Singh] that was involved “maintain[ed] 2) discrepancies between were There not, it was as the movement that dates, two sets arrest those event, single boycott argues, IJ officer reported to an election.... The fact he was in Singh’s those contained interview and day prison the election does testimony. he did in the prove participate 3) inconsistency concern- There was Finally, argued movement.” the brief boycott in a ing Singh’s role 1992 election inconsistency identified the IJ affidavit and Singh’s between father’s respect last arrest testimony. *4 “minor.” 4) fa- a conflict between the There was The BIA affirmed the results of the IJ’s testimony con- Singh’s ther’s and affidavit opinion. decision without See 8 C.F.R. cerning Singh’s last arrest took when 1003.1(e)(4)(2002). place. As an to the adverse credibil- alternative DISCUSSION ity on four based these determination held if grounds, the IJ that “even assum- I testimony ing arguendo, respondent’s the true, have to be the conditions India Singh’s testimony a. between Conflict country.” changed he left The since the regard and his with father’s affidavit finding an explicit IJ did not make about arrest first credible, if es- Singh’s testimony, whether credibility The IJ’s conclu adverse past persecution. tablished in part sion was based on her statement Singh to the BIA. at- appealed that: torney explanations the brief provided testified that he was on Singh arrested by the for the IJ in grounds upon relied April 3, police to the station taken making determina- her testimony and beaten. This conflicts tion, stating that: provided by with the the re- statement [Singh] charge not mention the false did spondent’s father, where the father just spousal it abuse because was charge that the a police wrote filed false charge by police a the [ ] false created — of spousal against respondent. abuse the The respondent.... embarrass this, respondent never mentioned respondent he did not argues that men- nor he that he prom- did mention had to it did charge tion because not de- ise that he would not associate with ... Concerning serve to be mentioned. his upon Khalistan movement release promise not to associate with the 3,1990. April movement, respondent Khalistan This at ground finding lied worthy also did consider it men- his hearing supported removal is not promise tion. It from extracted substantial evidence. him by police. He did not give freely and did not that he was believe First, Singh was not asked about bound it. his false regarding father’s statements promise or the addition, charges associate [Singh] “that the brief stated cross-examination, nothing and during meeting was nervous with the said asylum hearing and accounts with those state- officer for his conflicted is “de already ments. details that he had provided Where opportunity explain agency and that nied reasonable his father included in a inconsistency perceived supporting provides what the IJ affidavit no support at testimony!, IJ’s all for t]he her doubt about the conclusion that was not story 3, 1990, ... veracity April of her cannot serve as “arrested on taken to the asylum.” police basis for the denial Chen station and beaten.” (9th Cir.2004). Ashcroft, 362 F.3d Discrepancies b. between dates arrest Second, con Singh did mention the release presented at Singh’s asylum interview charge in dition and the false the declara and in his testimony tion he to his application: attached The IJ Singh: concluded that My able to secure our release father was testified that he on April was arrested they on the condition that will have 22, 1991, January, 1992, June no with the Federation or associations December 1993. This testimony is the Khalistan movement.... Neverthe- testimony inconsistent before less, month, following govern- officer, wherein he told the Haryana charges ment of filed criminal asylum officer that he was arrested on alleging that I against me had mistreat- 10, 1991, December, March fi- my ed When our wife.... case *5 credibility finding This adverse is based court, my nally presented before a wife solely an alleged discrepancy on identified explained charges that were false. by asylum officer in his “Assessment INS, (9th 859, 254 Ochave v. F.3d 865 Cf. reasons, To following Refer.”1 For the we Cir.2001) (“The IJ must consider evidence find that this document cannot support the application contained in asylum.”). for [an] determination. Third, Singh hearing nothing said at the represented asylum Singh statements; applica- his conflicted his with father’s tion, 8, he signed which on November rather, Singh omitted two details. “[T]he 1996, 1990, in April that he was arrested mere omission of details is insufficient to 1991, 1992, January June and December uphold credibility finding.” an adverse asylum 1993. on At interview October INS, 1160, Bandari v. 227 F.3d 1167 14, 1998, Cir.2000). according to the Assessment To Moreover, Singh have could not asylum officer, day by Refer made that testify had a reason for failing nefarious Singh presented matters, they way to these in no detract eligibility asylum: testimony from his A which was not consistent. false charge spousal abuse Applicant’s is consistent declaration indicates that his persecution of political opinion, on account and third were in second June arrest[s] 1992; as is January the release condition mentioned 1991 and not as he testi- INS, 10, his father. Shah v. See fied on March and 1991 December (9th Cir.2000) 1062, if (stating Applicant’s testimony 1991. regarding “discrepancies inconsistent, cannot be as at viewed his third arrest was also tempts by enhance testified that his third arrest was in 1991, 1992, persecution, [they] January claims of bear have no December then then (citations ing credibility” and internal December 1993 back to December 1991 omitted)). quotation 15, Singh January marks Applicant That and then repeat testimony did not in his peripheral determined that his third arrest was on reproduced 1. We have To Assessment Re- ion. entirety appendix opin- fer its as an to this part 15,1992 it out in the record as pointed after was eluded administrative
January
4,
handwritten
of Exhibit which bears the
not have been detained
that he could
along
with the IJ’s initials
1991 to
month
December
[from]
one
“3/28/01”
(but
Singh
Notice” sent to
on the “Referral
after the
January 1992 and be released
Refer).
on the Assessment To
had testi-
February
elections as he
2,May
final decision of
2001 states
IJ’s
fied.
2001,
28,
filed
“[o]n
March
the Service
only
impre-
one—albeit
The IJ made
Of-
Asylum
Referral Notice from the
To Re-
to the Assessment
cise—reference
fice,
4.”
which has been received as Exhibit
her
decision
she rendered
final
fer before
independent mention made of the
No
2,
hearing
a
2001, during
brief
May
Refer,
To
which is character-
Assessment
28, 2001,
asylum
Singh’s
at which
March
in the
decision as
“testi-
ized
IJ’s
admitted into evidence.
application was
mony
asylum
before the
officer.”
no
from
record that
There is
indication
hearing,
testified,
Singh
At his removal
copy
the Assessment
Singh received
asylum
with his
application,
consistent
28, 2001,
it is
prior
Refer
to March
To
3, 1990,
22,
April
he was arrested on
June
he or his counsel received
unclear whether
January
December
then,
any
at
copy of the document
nor
men-
1993. Neither the IJ
the INS3
issued
decision.2
time before the IJ
her
hearing
asylum
officer’s
tioned
counsel on March
The IJ stated
had
assertion that
stated otherwise
[government
“I
counsel]
2001:
see
asylum
was
at his
interview.
your
notice
handed me
referral
wherein
asked about whether the
officer’s
Asylum
denied
client’s
or,
report of the interview
accurate
if
go
and mark
going
I’m
ahead
Office....
was,
the reason for the asserted date
as Exhibit
dated
application
*6
confusion.
added).
today
(Emphasis
it.”
and initial
any
reflect
other
any
The record does not
need not decide
We
whether
28,
inconsistency
asylum
were
2001.
the
inter-
exhibits
admitted March
between
however,
is,
in-
and the
minor.4
hearing
The Assessment To Refer
view
removal
is
Cf
hearing,
your application
binding
the
2.At
the March 28
the IJ asked
are not
immi-
Singh's
"you're going
your
counsel whether
to ask
gration judge,
will
who
evaluate
claim
Asylum
If,
case,
[by
to
the denial
the Court
review
appears
anew.”
to be the
fact, pursuant
applicable
to
Notice,
Office].”
only
then
was sent
the Referral
asylum
regulation, Singh's
could
interview
simply
"your
would have learned
claim
asylum,
led
a denial of
but rather
not have
to
pro-
deemed
"You
not credible” because:
application
to
resulted in the referral
his
testimony regarding
vided inconsistent
hearing.
a
the IJ for
de novo
See 8 C.F.R.
your
your
lengths
dates of
arrests and the
208.14(c)(1) ("If
asylum
§
does not
officer
detentions.”
asylum
grant
applicant
inter-
to an
after an
On
the INS
to exist
March
ceased
view conducted in accordance with
208.9
the new-
appears to
and its functions were transferred to
in the case of an
who
Security.
deportable
ly-created Department of
be inadmissible or
under section
Homeland
Act,
212(a)
237(a)
asylum
Aguilera-Ruiz
of the
officer
See
* (9th Cir.2003).
application
immigration
to
shall refer the
an
835 n.
the sake of
For
together
charging
judge,
appropriate
with the
consistency,
opin-
this
we refer
INS in
document,
adjudication
pro-
in removal
ion.
”).
ceedings. ...
position
4. The INS’s
is that the asserted in-
The "Referral Notice” sent
two
consistency
asylum
between the
interview and
asylum
after
in
weeks
interview stated
Singh's testimony regarding the date of the
asylum
your
bold: "This
not a denial
is
Singh’s asy-
goes
application,” adding
third arrest
heart of
determina-
"[t]he
claim,
referring
Asylum
it is at
Office]
tions
made in
lum
because
odds
[the
Bandari,
(“[W]e
boycott. Singh testified that he was detained Congress designated posi- has not either the January for a month in and released "asylum scope tion of or the officer” full of February after the Singh election. If was authority to be exercised an individual election, released after the he could not have Attorney that assigned General has to alleg- been arrested in December as he "asylum act asylum as an An officer.” offi- officer, edly asylum told the and detained for authority principally cer's derives from the only discrepancy a month. The date if Attorney General’s authorization to "estab- existed thus amounted to at most a month. procedure” lish a for an alien in the United For reasons concerning elaborated below recollection, asylum. States to general seek principles of date we are R-S-J-, (Vacca, skeptical re discrepancy supports that a In 22 I. & N. Dec. at 878 such Member, credibility finding, concurring part Board but need not de- in and dis- cide senting 1158(a)). whether it does. part) (citing § in 8 U.S.C. Moreover, 208.9(c), oaths,” ques- § some to but not there is reason 8 C.F.R. To reliability tion the of the Assessment take evidence under oath. the officer must hearings, ap- At asylum that Refer. removal case, is no In this there evidence provided are to plicants in- translators asylum at representations due A process. court-provided ensure Nothing in under oath. terview made were at removal interpreted translator Refer To indicates the Assessment Punjabi. asylum in hearing, conducted At Singh oath was Nor was administered. interviews, contrast, whether hearing his removal during asked provided applicant proceed to the to with the [a]n unable evidence English provide, interview in must at no oath.6 officer under Service, a in- expense competent addition, “[u]pon completion of terpreter and the English fluent both interview, applicant’s or applicant any applicant’s language native or other have an opportunity shall representative language fluent. which is on the evi- make a or comment statement interpreter The must be at least 18 208.9(d). § presented.” 8 C.F.R. dence years age. applicant’s of Neither the the record does not Again, this case record, a attorney representative or op- was afforded an Singh reflect whether testifying applicant’s witness be- on the evidence portunity to comment half, a representative employee nor interview. the end applicant’s country nationality may applicant’s interpreter. serve as the Further, Singh signed asy although good comply Failure without cause to it at lum and later attested to application, may with this be a paragraph considered not, Singh con hearing, his removal failure to for the appear interview hearing, at the temporaneously or removal purposes §of 208.10. asylum officer’s sum asked whether the accurate. At officer’s 208.9(g). mation of his interview was 8 C.F.R. interview, Singh signed does the time of the Assessment To Refer not mention translator, yet that he would “was un- only acknowledging a notice states Although asy provide any beyond return learn the results. able information testify sentence lum officers are sometimes called short declarative happened.” to confirm the con We tell—and hearings event[s] at removal cannot see, reports, e.g., Li nor could the interview tents their notes IJ —whether the instead, Punjabi or, F.3d Cir. was conducted in 2004), testimo presented English, language no such with which INS ny apparently here.7 not comfortable. INS, example BIA
6. For an
of a case in which the
missible.
Saidane v.
Cf.
*8
(9th
1997)
asylum
(holding fundamentally
took
was unsure whether an
interview
Cir.
R-S-J-,
oath,
presentation
place
see In re
22 I. & N.
the
where
under
unfair
of evidence
(remanding
admittedly
at
for determination of
"the INS
Dec.
made no effort
call an
respondent
the issue
has
"[t]he
where
available witness and relied instead on that
by
affidavit”);
alleged
put
hearsay
damaging
that was not
under oath
Cu-
he
witness’s
officer,
asylum
INS,
there
affirmative
but
is no
nanan v.
856 F.2d
1374-75
administered”).
1988);
1229a(b)(4)(B)
evidence
an oath
Cir.
see also 8 U.S.C.
("[T]he
opportu
alien
shall have
reasonable
alien,
against
nity
Singh
argument,
to examine the evidence
7. Because
has not raised the
behalf,
present
we
of the
evidence on
alien’s own
do not address whether the absence
by
asylum
presented
purposes
and to cross-examine witnesses
officer for
of cross-examina-
”).
tion
Refer inad-
the Government....
rendered
Assessment To
decision in Li illustrates the
Our recent
states that
asylum
assessment
offi-
placed
ensuring
we have
importance
“pointed
cer
Singh
out” to
that his dates
reliability
that sufficient indicia of
exist were
only
inconsistent. With
a written
asylum applicant's airport
before an
inter-
summary, but no transcript or contempo-
may properly
impeach-
view
be used as an
raneous
any testimony
notes nor
by the
ment source. Li stated:
(as
asylum officer or Singh
he was not
given
We hesitate to view statements
asked),
impossible
it is
to discern precisely
during airport interviews as
im-
valuable
how, when,
and what context this inter-
peachment sources because of the condi-
jection
detail,
occurred.
Without
one
they
which
are
tions under
taken and
sensibly
cannot
Singh’s
evaluate
reaction
a newly-arriving
because
alien cannot be
interjection,
including whether he
expected
divulge every
detail of the
explanation
offered an
any
discrepancy
persecution he or she sustained. But
and whether
affirmatively changed
here, the
heard
IJ
substantial evidence
story or
object
instead failed to
to an
Inspector
from
Westlake
in-
[Li’s INS
by
assertion
the interviewer.
Just as the
procedures,
about the
used to
terviewer]
I
opinion
J’s assertion in her
that there was
accurately
ensure that
interviews were
inconsistency
between
testimo-
understood and recorded. Both the
ny and his
concerning
father’s affidavit
supervisor
interpreter
INS
and the
Singh’s participation in the 1992 election
carefully question
would
and evaluate
boycott,
below,
discussed
cannot be evalu-
interview;
any
the alien before the
if
knowing
ated without
what Singh actually
detected,
sign
language
of a
barrier was
said,
asylum
so the
officer’s Assessment
the interview would be
until
halted
To Refer is not sufficient evidence of what
appropriate interpreter could be found.
permit
said to
evaluation of an as-
interview,
interpreter
After
serted conflict.8
questions
review
would
and answers
In sum: The Assessment To Refer does
line-by-line
the alien to ensure
any
not contain
questions
record of the
problems
there were no translation
interview,
asylum
and answers at the
any
may
to correct
misstatements that
detailed,
other
contemporary, chronologi-
have occurred.
interview,
cal notes of
only
but
(citations omitted).
1091 years they happen extremely after to expect.” unreasonable Kagan, Michael Is Eye test of how truthful a sub- Truth in the poor witness’s Beholder? Ob of jective Credibility account Assessment in Refugee stantive is. Immigr. Status Determination. 17 Geo. experience All of us have had the of (2003); L.J. 385-86 see also llene having particular a lucid recollection of a Durst, Lost Why Translation: Due event, yet being unable date the event Process Demands Deference Refu years. within months even Scientific RutgeRS gee’s Narrative. 53 ’L. Rev. supports research this observation: (2000) 156 (noting that certain societies Among the most common of failures “simply do think schedules, not in terms of memory source is remembering when dates, time, or units of do; as Westerners something happened.... situational, ‘time’in these social, cultures is physical of repeated Victims or sexual activity-focused”). abuse, example, gist for remember the The reason for applicants’ lapses However, experiences. they of their of- recollection is that calendar dates are fre- particular ten confuse the details of inci- quently part not pic- direct mental dents, the time or including dates of ture of an event that is recorded one’s particular and specific assaults which ac- memory. Scientists have identified a com- tions occurred on specific which occa- monly-held and “chronological mistaken il- recur, sion. As events can become lusion” that considers chronology to be exactly difficult to spe- remember when autobiographical intrinsic to memory. See cific actions even though occurred mem- Friedman, William Memory J. for ory for what happened is clear. Psychol. Events, Time Past Bull. of Notwithstanding inability our to accu- (1993). fact, accurately de- rately dates, report times and witnesses “thin, scribed, chronology is but a veneer commonly are asked to do so. on the more basic substance of coinci- Follette, Deborah Davis & William C. Foi- dence, locations in patterns, recurrent Memory bles Witness Traumat- independent sequences meaningfully of re- of Events, ic/High 66 J. Air L. & Com. lated events.” Id. at 61-62. Profile (2001) (footnotes omitted). 1421, 1514-15 People do not walk around with the phenomenon poor of date recollec- equivalent heads, stamps of date in their particularly tion is often evident like the camera feature produces pho- culturally setting diverse and trauma-filled tographs identifying the date on which refugee adjudication.10 of claim “Events taken; did, pictures were if they that fea- that are central to an case in a unnecessary. ture would be See id. at 58 (“[T]hat legal may sense what be tags internal time or conventional perceived important to be when the events regularly assigned dates are ... has no dates, happened.... Instead, Details such as which support.”). “naturally we code remember, people often do may long-term be meaning memories empirical study As noted in a recent expense peripheral their recall de- refugees: Kosovar and Bosnian Also, peripheral suscep- tails. detail is more disruption tible to the event. Laboratory and field studies have shown after al., Herlihy Jane et people Discrepancies in Autobio- recall more details that are cen- graphical high tral when the As- Implications an event has a level of Memories — impact, robbery, emotional sessment Asylum Repeated such as armed Seekers: Inter- (2002) emotionally than when an event is Study. neutral. 324 Brit. Med. J. views added) (endnote omitted). is, however, (emphasis Their recall central details *11 1092 them, recency (e.g., of ar- sequential so that the events an attached
associations is an interpreta- later, trial) may remembered information rest a related not — recording.” tion, Kagan, su- a true be, impairment. absent mental Consis- date Attaching a to an event pra, at 385. tently with that most phenomenon by accomplished separate a has to be date recollection involves reconstructive occur, can effort for a That mental effort. prone inaccuracy, we process have held events,” Friedman, of su- minority “small in dates discrepancies that “minor that simultaneously with the senso- pra, at by attempts appli- cannot be viewed as a strong of desire ry because experience, persecution cant to enhance his claims of date, wedding, of one’s remember See, credibility.” bearing e.g., have no Kennedy’s of President example, INS, F.2d Damaize-Job v. 787 1337 assassination. (9th Cir.1986). We adhere to princi- commonly, connecting events More here, ple that the reli- and conclude IJ’s later, through a cognitive pro- dates occurs a date perception discrep- ance on her of reconstructing a date from written cess of ancy account of between his last carefully records, by recalling clues— given arrest and that in his father’s affida- events, of a seasonal sequence such aas vit for the ground is a valid adverse climate, holidays, one etc.'—until proximate credibility determination. date, or at least at an ascertainable arrives signifier which an event’s date can from relatively, accurately. be See calculated As we have that none of the Cohen, Questions Credibility: determined Juliet of Omissions, grounds and Errors “are valid Discrepancies by reasons cited the IJ of Testimony Asylum Seek- upon finding
Recall in the
base a
which to
of
Refugee
(2001)
ers,
L.
L
293
J.
credible,”
13
applicant is not
Mendoza Man
Int’
(“[W]e
year
dog
which the
can recall
imbao,
(citation
329
F.3d
658
and inter
by attaching
beach
other
on the
lost
omitted),
quotation
nal
we
marks
need not
year
age
such as the
memories to
agency’s
address whether the
failure to
incident,
present at
people
dog,
Singh’s explanations
address
for the al
on.”).
experienced,
and so
emotions
leged incongruities
validity
affects the
by “jogging”
Searching for a discrete
credibility
the IJ’s
determination.
adverse
depends
memory
one’s
is method
Ashcroft,
Kaur
F.3d
v.
379
887
Cf.
(9th Cir.2004) (“An
number of refer-
sifting
unpredictable
credibility
Friedman,
ence
at 59
points.
supra,
See
finding
improper
is
when
IJ fails to
(“[T]he
nature
amount and
of available
a petitioner’s explanation
address
for a
greatly
information differ
from
contextual
inconsistency.”);
discrepancy or
Guo
event
of variation
to event because
1201
Cir.
event,
initial
loss of
significance
2004).
time,
passage
sche-
information with
experiences,
similar
repeated
matization of
Conclusion
influences.”).
idiosyncratic
many
other
four adverse
None of the
process
fraught
po-
The
therefore
grounds
IJ is
upon
supported
relied
inaccuracies, see, e.g.,
R.
tential
Norman
The IJ
substantial evidence.
did not
ah,
Subjective
Brown
Dates Nat-
et
Singh’s testimony,
determine
if
whether
Vei’y-long-term Memory,
ural Events in
credible,
past persecution
established
or a
Psychol.
Cognitive
(1985),
in a
persecution.
well-founded fear of
We
memory
types
that other
re-
manner
considering
proceedings,
therefore
further
as
the relative
remand for
trieval —such
credible,
Singh’s testimony
January
pointed
to on
1992 after it was
accepting
asylum,
with-
eligibility
determine his
out that he could not have been detained
removal, and CAT relief. See
holding of
for one month was [sic ] December 1991 to
*12
(9th
593,
Ashcroft,
He v.
328 F.3d
603-04
January 1992 and be released after the
Ventura,
Cir.2003);
INS v.
537 U.S. February 1992 elections
cf.
as he had testi-
(2002)
12,
353,
APPENDIX days within a few time. This information Applicant’s is material to claim because he REFER ASSESSMENT TO testified that he was [sic left India due to ] Applicant 33-year-old is male native of these arrests. India and citizen of India. Applicant presented testimony which was
Applicant credibly testified he entered the Applicant repeatedly not detailed. inspection on United States without June asked to describe his arrests and his politi- Ysidro, CA, 8, 1994, at San and was admit- However, cal activities. he was unable to by and showed clear and ted as [sic] provide any beyond information a short convincing timely evidence that he filed. declarative sentence that hap- the event Applicant fears that he will be harmed on pened. This information is material political opinion. account of his Applicant’s claim because he testified that Applicant testified that he was a member he left India due to these arrests which of the All Federation India Sikh Student occurred engaged political after he ac- (Federation). As a member of the Feder- tivity. ation, Applicant pasted collected funds and Applicant has not shown there is a reason- posters. He was arrested four times. He possibility suffering persecution able 3, 1990; 10, April was arrested March 1991; 1991; 29, that he fears. December and December Applicant 1993. After each arrested [sic ] reasons, foregoing For the is lengths for various of time detained eligible status in the United police. and was beaten and tortured to refer to Im- States. Assessment is Applicant presented testimony which was migration Judge. sufficiently not consistent or detailed. LEAVY, Judge, concurring: Circuit Therefore, he was not found to be credible. I concur in the result. The adverse
Applicant presented testimony which was not supported determination is Applicant’s not consistent. declaration in- by substantial evidence. that his third dicates second and arrest This circuit has articulated a rule of law 1992; January were June 1991 and that “Minor inconsistencies in the record as he testified on March 1991 and appli- that do not relate to the basis of an testimony 1991. re- Applicant’s December alleged persecution, go cant’s fear of garding his third arrest was also inconsis- claim, any- heart of the or reveal tent, he testified that his third arrest was thing asylum applicant’s about an fear for January in December then safety support are insufficient to then December 1993 back to December credibility finding.” Mendoza January Appli- 1991 and then cant determined his third arrest was Manimbao v. Cir.2003). citations to The several journals that psychological
medical laps- explanations the scientific
discuss recall, are in the none of which
es date
record, appellate that our decision suggest factfinding that has not premised process. the adversarial
been tested
Furthermore, incorrectly sug- the opinion
gests process that an inaccurate underlying our
recollection is the reason *13 I discrepancy” jurisprudence.
“minor our rely upon it
would find sufficient By engaging precedent.
well-established another factfinding,
in our own we invite
court, body, to or even an administrative if,
reject in its holding precedent, our
superior factfinding process, finds wrong on the facts.
we are Petitioner, Kipkorir BIWOT,
Jona Attorney GONZALES,
Alberto
General, Respondent.
No. 03-71456. Appeals,
United States Court
Ninth Circuit.
Argued and Feb. 2005. Submitted April
Filed