Kumar v. Garland, No. 17-73412 (9th Cir. 2021)
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Kumar, born in India, belonged to a caste considered to be of lower social standing. He joined the Bahujan Samaj Party (BSP) because of its opposition to the caste system. He asserts that as a result of his work for the BSP, he was beaten four times by the police and members of opposing parties. An IJ denied his application for asylum and related relief on adverse credibility grounds. The BIA dismissed Kumar’s appeal.
The Ninth Circuit remanded. Under the REAL ID Act, IJs must base credibility determinations on “the totality of the circumstances, and all relevant factors.” 8 U.S.C. 1158(b)(1)(B)(iii), abrogating the single factor rule to which the Ninth Circuit previously adhered. Two of Kumar's three alleged testimonial inconsistencies were actually not inconsistent. Concerning finding that a third-party letter conflicted with Kumar’s testimony, the court concluded that the inconsistency was wholly illusory. A finding that it was implausible that Kumar would not have suffered more injuries after a certain attack relied entirely, improperly, on conjecture. The IJ’s conclusion that Kumar’s affect suggested that he was reciting a rehearsed story, rather than relating incidents he had personally experienced, “passed the low bar for reviewing such findings.” No specific number of inconsistencies requires sustaining or rejecting an adverse credibility determination but falsehoods and fabrications weigh particularly heavily in the inquiry; clear falsehoods and fabrications were entirely absent here.
Court Description: Immigration. Granting Bhupinder Kumar’s petition for review of a decision of the Board of Immigration Appeals upholding the denial of Kumar’s application for asylum and related relief on adverse credibility grounds, the panel concluded that the bulk of the credibility findings in this case were infirm, and remanded. Kumar, who was born in India and belonged to a caste considered to be of lower social standing, joined the Bahujan Samaj Party (“BSP”) because of its opposition to the caste system. He asserted that as a result of his work for the BSP, he was beaten four times by the police and members of opposing parties. An immigration judge denied his application for asylum and related relief, and the BIA dismissed Kumar’s appeal. *** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. KUMAR V. GARLAND 3 The panel explained that under the REAL ID Act, IJs must base credibility determinations on “the totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). However, even after the REAL ID Act, this court followed its “single factor rule,” under which the court would affirm an adverse credibility finding so long as one of the grounds on which that finding was based was supported by substantial evidence and went to the heart of the claim. In Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc), the court held that the REAL ID Act abrogated the single factor rule and that the court must affirm credibility findings only when they are supported by the totality of circumstances. Applying this standard, the panel considered the four factors that the BIA relied on in upholding the adverse credibility determination here. First, as to the finding that Kumar provided inconsistent statements, the panel concluded that two of the three alleged testimonial inconsistencies were in fact not inconsistent at all. Second, as to the finding that a third-party letter conflicted with Kumar’s testimony, the panel concluded that the inconsistency was wholly illusory. Third, as to the finding that it was implausible that Kumar would not have suffered more injuries after a certain attack, the panel concluded that the basis for this conclusion relied entirely, and improperly, on conjecture. Fourth, as to the IJ’s conclusion that Kumar’s affect suggested that he was reciting a rehearsed story, rather than relating incidents he had personally experienced, the panel concluded that the IJ’s perception of Kumar’s demeanor passed the low bar for reviewing such findings. The panel observed that the court declined to draw a bright line or engage in a number-counting analysis in Alam, instead noting that no specific number of inconsistencies 4 KUMAR V. GARLAND requires sustaining or rejecting an adverse credibility determination. The panel also observed that post-Alam precedents suggest that falsehoods and fabrications weigh particularly heavily in the credibility inquiry, but explained that clear falsehoods and fabrications were entirely absent here. Acknowledging that the “totality of circumstances” review permits the court to uphold an adverse credibility finding, even where the court concludes that some of the grounds are not supported by substantial evidence, the panel concluded that the several rejected findings here all but gutted the adverse credibility determination. The court remanded to the BIA to determine in the first instance whether the remaining factors—considered on their own— suffice to support an adverse credibility determination.
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