Balwinder Singh v. Jefferson Sessions

FILED NOT FOR PUBLICATION DEC 28 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BALWINDER SINGH, Nos. 14-72459 15-71486 Petitioner, Agency No. A200-957-165 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 16, 2017 San Francisco, California Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN,** District Judge. Petitioner Balwinder Singh appeals the Board of Immigration Appeals’ decision affirming the Immigration Judge’s (“IJ”) adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252. As Singh’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Claudia Wilken, United States District Judge for the Northern District of California, sitting by designation. application was filed after May 11, 2005, the REAL ID Act standards governing adverse credibility decisions control. 8 U.S.C. § 1158(b)(1)(B). 1. Inconsistent Testimony. We explained in Shrestha v. Holder that an IJ “should consider [] the petitioner’s explanation for a perceived inconsistency, and other record evidence that sheds light on whether there is in fact an inconsistency at all.” 590 F.3d 1034, 1044 (9th Cir. 2010) (internal citation omitted). Further, an IJ must provide an opportunity for an asylum applicant to explain an inconsistency and must not draw an adverse inference without considering the applicant’s explanation. Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir. 2014). The IJ and the BIA erred by failing to consider Singh’s explanation that his listing of the incorrect date of his marriage on his asylum application was an oversight and that Singh did not know why his family in India had notarized his passport copy. The IJ also never inquired as to why Singh initially testified that he had worked for one candidate in the 2009 MP elections before correcting himself to provide the right candidate’s name. Additionally, during the discussion over whether Singh said that “landowners” or “the government” were denying him fair prices for crops, Singh attempted to speak, presumably to clarify the discrepancy, but the IJ cut him off. The IJ also did not ask why Singh first testified that he joined the Mann party 2 in August 2009 and then, after Singh’s attorney requested clarification, stated that he joined in January 2009. Under the REAL ID Act, minor inconsistencies may be considered when evaluating an applicant’s credibility, but inconsistencies must not be trivial. Shrestha, 590 F.3d at 1043. We have held that minor discrepancies in dates that “cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility.” Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011). Several of the inconsistencies relied on by the IJ and adopted by the BIA were trivial discrepancies in dates, including the incorrect year of his marriage and the incorrect date that he joined the Mann party. The IJ did not give Singh ...

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