GORAYA v. WHITAKER (2018)

MEMORANDUM **

Harprit Singh Goraya, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Goraya asserts that police persecuted him on account of his political opinion and Sikh religion. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review because the BIA’s denial was based on adverse credibility findings that are not supported by substantial evidence. See Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014).

The BIA characterized as “nonresponsive” petitioner’s lack of certainty in his answers to questions that called for speculation. (For example, answering “I don’t know. Could be they would kill me,” when asked what would happen if he returned to India; answering “I don’t know. I don’t think so,” when asked whether family members were active in the movement for Khalistan.) The answers criticized by the BIA, however, were responsive to the questions asked, and the contrary conclusion is not supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii) (setting forth standard for credibility determinations); Lai, 773 F.3d at 970. The result is similar with respect to the BIA’s characterization of some of petitioner’s answers as “hedging” or “vague.” The questions did not call for answers that were within petitioner’s knowledge, as, for example, inquiries into why he was arrested. See Lai, 773 F.3d at 970. Nor was he vague in recounting the story of his first arrest. To the contrary, he provided every detail he was asked for. The BIA’s reference to “inordinate amounts of time necessary to obtain a straightforward response to simple questions” is not supported by the hearing transcript. See Shrestha v. Holder, 590 F.3d 1034, 1045 (9th Cir. 2010) (holding that agency “must identify specific instances, supported by the record, where the [applicant] did not respond”).

The BIA and Immigration Judge (“IJ”) also faulted minor inconsistencies in petitioner’s statements about his birth certificate and passport that, in light of the unquestioned evidence that he is who he says he is, have no apparent bearing on his credibility. See id. at 1046 (holding that inconsistency was too trivial, under the totality of the circumstances, to form the basis of an adverse credibility determination); Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011).

The BIA and IJ found it implausible that petitioner lost touch with multiple people in India because their phone numbers became disconnected or were no longer in service—according to the agency, an “identical explanation.” But the record shows that petitioner’s explanations weren’t identical: His attorney in India, for example, simply stopped answering his calls. And, under the circumstances of his family’s flight from police harassment, we fail to see how it is “implausible” that they changed their phone numbers or disconnected their phones.

The BIA and IJ also faulted petitioner for arguing that his arrest in 2006 in connection with the train station bombing made it more likely that he would be arrested again, but any implausibility of such a result does not relate to whether he credibly testified that he was arrested in 2006 and 2007. See Shrestha, 590 F.3d at 1046.

Since the BIA’s decision was based solely on an adverse credibility determination, it never reached the question of whether, if petitioner were deemed credible, he would be entitled to relief. Because we conclude that the adverse credibility determination was not supported by substantial evidence, we must remand for consideration of whether, when petitioner’s testimony is deemed credible, he is entitled to relief. See Lai, 773 F.3d at 976 (granting petition and remanding for further proceedings).

PETITION FOR REVIEW GRANTED and REMANDED.