Vino Kumar Saval; Gita Kamala Nanikram, Petitioners, v. Immigration and Naturalization Service, Respondent, 142 F.3d 445 (9th Cir. 1998)

MEMORANDUM^* 

Vino Kumar Saval and his wife, Gita Kamala Nanikram ("Petitioners"), natives and citizens of India, seek review of the decision of the Board of Immigration Appeals ("BIA") dismissing their appeal of the immigration judge's ("IJ") denial of their applications for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h). Gita Kamala Nanikram's claim is derivative of her husband's claim. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we reverse and remand for further proceedings.

The BIA's determination that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992). We review the BIA's credibility determinations for substantial evidence. Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992). Likewise, we review the BIA's decision not to withhold deportation for substantial evidence. Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997).

In the present case, the IJ failed to make an explicit credibility determination. Rather, after specifically noting numerous material inconsistencies in Mr. Saval's application, the IJ vaguely asserted that he "did not know what to believe" and that he did not know "what [was] the real truth." Despite the IJ's failure to issue an explicit credibility determination, the BIA did not conduct its own independent assessment of Mr. Saval's testimony. Cf. Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994) (BIA must act as initial factfinder where IJ failed to make necessary findings). Instead, the BIA affirmed the IJ's decision to deny asylum and withholding of deportation after finding that Mr. Saval's "largely uncorroborated testimony disclose [d] insufficient credible, detailed facts to support his persecution claim." Such cursory review by the BIA is troubling, particularly in light of the IJ's failure to make an explicit credibility determination himself in this case. See Hartooni, 21 F.3d at 342 (9th Cir. 1994) (holding that BIA erred in "relying on nonexistent 'findings' of the [IJ]").

We are unable to assess the merits of Mr. Saval's claims in the absence of a clear credibility determination. Accordingly, we remand to the BIA so that it may make a proper credibility determination.

REMANDED.