Singh, et al v. Holder

Filing

FILED OPINION (J. CLIFFORD WALLACE, DIARMUID F. O'SCANNLAIN and ANDREW J. KLEINFELD) DENIED., Judge: AJK Authoring. FILED AND ENTERED JUDGMENT. [7737414]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



HARMINDER SINGH,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 05-70722
Agency No.
A078-668-359
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 2, 2009—San Francisco, California
Filed May 3, 2011
Before: J. Clifford Wallace, Diarmuid F. O’Scannlain and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld

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COUNSEL
Ajai Mathew (argued), Law Office Ajai Mathew, and Manpreet Singh Gahra (briefed), Law Office of Manpreet Singh
Gahra, Berkeley, California, for the petitioner.

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Jason S. Patil, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

OPINION
KLEINFELD, Circuit Judge:
We address the effect of lying in an asylum application and
to an asylum officer on an adverse credibility finding.
FACTS
Harminder Singh is a native and citizen of India. He, his
parents, and his sisters went to Canada, where they lived for
two and a half years. They applied unsuccessfully for asylum
in Canada. After the denial, they somehow entered the United
States “without inspection,” and Singh applied for asylum
here. The Immigration Judge (IJ) denied his claim, the Board
of Immigration Appeals (BIA) affirmed without opinion, and
Singh petitions for review. We deny the petition.
Singh’s application for asylum in the United States, which
he swore to be true, was, as he has subsequently acknowledged, a lie. He answered “no” to the question asking whether
he had ever filed for or been granted or denied asylum by any
other country, and claimed to have resided in India during the
two and a half years he actually lived in Canada. He submitted numerous documents with the application, including a
sworn affidavit stating that the affiant knew Singh’s whole
family was active in Sikh politics and he, his father, and his
mother had been arrested several times, a statement by an
Indian lawyer alleging the same thing, and a hospital certification indicating that Singh had been treated for a week for
“multiple blunt injuries on [his] whole body.” Singh subsequently admitted that all these documents were fake, he was
never arrested, his mother was never arrested, and Singh had

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been in Canada at the time of the supposed medical treatment
in India.
The political persecution Singh claimed in his asylum
application was for Sikh activism. He claimed that he, his
father, and his mother had all been arrested repeatedly
because of the family’s participation in Sikh politics. The
police, he said, had tortured both him and his father in the past
and had continued their persecution until he left India in 2000.
Subsequently, he admitted that he was in Canada from 1997
on, his mother had never been arrested, and Singh himself had
never been arrested, nor had he been tortured or beaten by the
police. Nor was his family engaged in Sikh activism. He had
simply lied.
Singh had two asylum interviews. He testified that at the
first one, he verified that everything in his false application
was true because Avtar Singh Gill, who had prepared Singh’s
immigration application, accompanied him and told him to
stick to his story. The second time, Gill was not present, but
Singh was upset because of the recent death of his mother,
and Gill had threatened to tell the government the truth, that
he had been in Canada when he had claimed to be in India,
so Singh again reaffirmed the truth of the false application.
Subsequently Singh filed what he called “corrections” to
his asylum application and testified before the IJ about the
falsehoods in it. He conceded that he had left India three years
before coming to the United States. The “corrections” disclosed two and a half years’ residence and his unsuccessful
application for asylum in Canada. According to the new statement, his father had been a successful professional photographer at a tourist location in Kashmir (not the owner of a
refrigeration and air-conditioning business as Singh had previously sworn), but had moved to Delhi in 1990 because of
Muslim hostility to non-Muslims, and had subleased his
Kashmir property to a Muslim. The police had arrested his
father in 1996 on suspicion of aiding Kashmiri separatists (not

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Sikh activism), and after his father was released, the family
moved to Canada. Far from being active in Sikh politics,
Singh’s father was not a member of any political group in
India. Singh’s new story had nothing of the Sikh activist
claim that he had sworn to in the asylum application. Nor did
the new story allege that Singh was beaten, or that he, his
father, and his mother were arrested multiple times.
Before the IJ, Singh testified that his father was arrested on
December 20, 1996, beaten and tortured, and then released on
bail. Subsequently, the police repeatedly came to the Singh
residence asking about the alleged Kashmiri separatists and
threatening that if the family did not tell them, “they would
take us into captivity and commit atrocities against us.” The
following summer, the family moved to Canada. They remain
in touch with their extended family and former neighbors in
India.
At Singh’s merits hearing, government counsel introduced
the fraudulent documents for their bearing on Singh’s credibility. Singh conceded that he had perjured himself previously, before the asylum officer, but asked that the IJ listen
with an open mind to his testimony since he conceded previously testifying falsely. The IJ did so, rejecting the government’s suggestion the past falsehoods alone made a hearing
unnecessary. Since the only arrest, torture, and beating
claimed was of Singh’s father rather than Singh, the IJ asked
where the father was. Singh’s attorney said that the father was
in the United States, but that the father’s mental health had
deteriorated since his wife’s death and he would not be a
competent witness. The IJ asked if there was medical evidence to support the claim of incompetence. Singh’s counsel
conceded that there was none. Counsel added, “[E]very time
I speak to him and you mention his wife, he breaks down
because of the events they went through.”
Government counsel suggested that Singh needed corroboration, particularly since Singh had previously lied and the

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only harm claimed was to the father. Since the father also had
an asylum application pending, government counsel asked for
a written waiver of confidentiality for the father’s asylum file
so that if he did testify, the father could be effectively cross
examined. The asylum regulations limit disclosure of information in an asylum application “without the written consent
of the applicant.”1 The IJ advised Singh’s lawyer that Singh
had the burden of proof, and it would be “much heavier in a
situation like this where there is—he has completely changed
his story and particularly where he admits to having lied
under oath at the asylum office.” Because of this, the father’s
testimony might be crucial corroboration. If he was not going
to testify because of incompetence, there should be something
more than Singh’s lawyer’s opinion, such as a psychological
evaluation. And if he was, he should be designated on the witness list, and absence of a written waiver might be a problem.
After discussion of what dates would be mutually convenient
for all counsel and the court, the hearing was adjourned for
three and a half weeks, which Singh’s attorney said would be
fine. No testimony was taken at this first hearing. Testimony
was put off until continuation of the hearing at the agreedupon later date.
At the next hearing, Singh’s father was in court, though no
witness list naming him had been filed. Though Singh’s sisters lived with him in Hayward, California, Singh had not
brought any of them to the hearing. Singh’s counsel said that
he still did not think the father was competent to testify, but
he had no medical evidence, so the judgment on competence
would be one for the court to make. Singh’s lawyer proposed
to ask the father about his own asylum application and offered
1

8 C.F.R. § 208.6(a) (“Information contained in or pertaining to any
asylum application, records pertaining to any credible fear determination
conducted pursuant to § 208.30, and records pertaining to any reasonable
fear determination conducted pursuant to § 208.31, shall not be disclosed
without the written consent of the applicant, except as permitted by this
section or at the discretion of the Attorney General.”).

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an oral waiver of confidentiality. The IJ postponed deciding
whether the father could testify until after hearing Singh’s
own testimony.
Singh then told his new story, about police suspicion that
his family aided Kashmiri (not Sikh) separatists. He explained
that he had previously given his false story because Gill had
prepared his application with the false story and told him that
he should not disclose his lengthy Canadian residency
because “that’s not good for our case.” Singh said that even
though the application was in his own handwriting, he had
copied from what Gill had written for him. But he feared
returning to India, because “they are going to question me
about my father, where my father is. If I do not tell them
where my father is, they are going to kill me at that time, at
that very instant.” He conceded that his father’s pending asylum application also contained “errors”: falsely claiming persecution in India when he was actually in Canada, omitting
the unsuccessful asylum application in Canada, and leaving
out his son Singh in the blanks for “all your children.” Singh
said he did not have his passport, because if the family had
returned to the Canadian authorities to get their passports
back, they would have been deported.
Counsel and the court discussed, both at the beginning and
the end of Singh’s testimony, what to do about testimony
from his father, who was present in the courtroom. Singh’s
lawyer explained his earlier questioning of the father’s competence to testify: “It’s not like he’s seeing a doctor or anything, but he suffers from severe anxiety attacks and he’s
most of the time [ ] not very coherent.” He said he had tried
to get him medically evaluated Friday of the previous week
at Kaiser Permanente (the hearing was on Monday), but it had
not been possible. The father had separate counsel, who was
not present, but Singh’s lawyer said the father’s lawyer did
not object to the father testifying. Government counsel
objected to the father testifying because he had not been listed
on Singh’s witness list, his competence was questioned and

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no medical evaluation had been done, no written waiver had
been obtained so the government would not be able to cross
examine effectively, and the father’s lawyer was not present
to confirm the father’s waiver of confidentiality for his own
asylum application.
After Singh’s testimony had concluded, Singh’s lawyer
said he would only ask the father two questions, why he left
India and why he was claiming asylum, and would expect
answers consistent with Singh’s. Government counsel continued to object, and the IJ said he did not think the father’s testimony would in the circumstances be crucial. Singh’s lawyer
then rested his case. Government counsel argued that there
was a Sidhu issue.2 The IJ announced that “if the parties were
to rest on this record,” she would deny asylum. Singh had not
borne his burden of proof, she said, on account of failure to
corroborate his new story despite having admittedly perjured
himself when swearing to his earlier story, and she would not
grant asylum even if she found him credible. The father’s testimony might or might not bolster Singh’s credibility, since it
might offer some other reason to believe him or might simply
tend to show that they together lied about being persecuted in
India when they were actually safe in Canada. Singh then
changed his position on resting his case, and asked for a continuance to perform the necessary tasks so that the father
could testify. The IJ denied the request.
The IJ decided that Singh had not borne his burden of
proof. She found that Singh had submitted a false application
for asylum, along with false documents, and then had sworn
to “an entirely different story.” She noted that at the first of
the two hearings, she had told Singh’s attorney that he should
2

Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000) (holding that “where
the IJ has reason to question the applicant’s credibility, and the applicant
fails to produce non-duplicative, material, easily available corroborating
evidence and provides no credible explanation for such failure, an adverse
credibility finding will withstand appellate review”).

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either have the father available to testify after she had continued the hearing for three and a half weeks, with an executed
waiver of confidentiality, or have something verifying his
lack of competence, but Singh’s attorney did neither.
Although the father was present at the continued hearing, he
had not been medically evaluated, his lawyer was not present,
and had not executed a written waiver of confidentiality.
Singh’s asylum application with the false story had been
entirely in Singh’s handwriting. He had testified to the false
story at his asylum office interviews, one with Gill present
and one without. The court was troubled not only by Singh’s
admitted perjury and false documents but also by the absence
of corroboration for the new story. The father’s testimony had
not been introduced, and Singh’s sisters, who lived with him
and who were “obviously material witnesses,” did not testify.
The IJ therefore reasoned that Singh had not “been a credible
witness in that he has perjured himself in the past and has
failed to present anything other than his own testimony when
other forms of evidence could have been available to him.”
The BIA summarily affirmed the IJ, and Singh appealed.
ANALYSIS
Singh argues that the IJ’s adverse credibility finding was
not supported by substantial evidence in the record, and that
he was denied due process of law by the denial of a continuance so that he could put his father on the stand.3 Where, as
here, the BIA summarily affirms the IJ, we review the IJ’s
3

He also argues that he was eligible for asylum, should have been
granted withholding of removal, and was entitled to relief under the Convention Against Torture. The first claim depends on overturning the
adverse credibility finding, the second on the first, see Pedro-Mateo v.
INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (noting that a failure to satisfy
the lesser standard for a grant of asylum necessarily results in a failure to
demonstrate eligibility for withholding of removal), and the third on evidence showing a probability of torture, see 8 C.F.R. § 208.16(c)(2), which
was absent.

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decision as the final agency action.4 We review the findings
of fact, including adverse credibility determinations and the
findings underlying the denial of relief, for substantial evidence.5 We review due process claims de novo, and will
reverse only “if the proceeding was ‘so fundamentally unfair
that the alien was prevented from reasonably presenting his
case.’ ”6
I.

Credibility.

[1] Singh argues that because the IJ found his testimony to
be internally consistent on direct and cross and consistent
with his second application for asylum, the facts he swore to
had to be deemed true, and the IJ was not entitled to reject his
credibility because of his failure to provide corroboration. He
provides quotations from several of our decisions that might,
taken out of context, provide support for those propositions.7
4

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008);
Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).
5
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
6
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (quoting PlateroCortez v. INS, 804 F.3d 1127, 1132 (9th Cir. 1986).
7
Singh cites these cases in support of his proposition: Kataria v. INS,
232 F.3d 1107, 1114 (9th Cir. 2000); Ladha v. INS, 215 F.3d 889, 893 (9th
Cir. 2000) (explaining that “the BIA erred . . . in requiring corroborative
evidence to support the Ladhas’ credible testimony” and that “when an
alien credibly testifies to certain facts, those facts are deemed true, and the
question remaining to be answered becomes whether these facts, and their
reasonable inferences, satisfy the elements of the claim for relief”);
Cordon-Garcia v. INS, 204 F.3d 985, 992-93 (9th Cir. 2000) (noting that
the “court recognizes the serious difficulty with which asylum applicants
are faced in their attempts to prove persecution, and has adjusted the evidentiary requirements accordingly” (citation omitted)); Campos-Sanchez
v. INS, 164 F.3d 448, 451 n.1 (9th Cir. 1999) (“[I]f the BIA finds the petitioner credible . . . it should not require corroborating documents in order
to establish his claim of a well-founded fear of persecution.” (emphasis
omitted)); Velarde v. INS, 140 F.3d 1305, 1310 n.5 (9th Cir. 1998) (noting
that this court has “repeatedly emphasized that no such corroboration is
required”); Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996)

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This case is pre-REAL ID Act, so the provision in that statute
that the trier of fact may require corroboration, even for
“otherwise credible testimony”8 does not apply to this case.
Context is all, though. In some of the cases Singh cites, the
BIA assumed credibility but nevertheless required corroboration.9 In some, there was no explicit credibility determination.10
And in the rest, the comments cited by Singh are factually distinguishable.11 None stand for the proposition that testimony
both internally consistent and consistent with the asylum
application must be deemed credible, or that credibility cannot be rejected on account of an absence of reasonably avail(“Supplying corroborating affidavits . . . has never been required to establish an applicant’s credibility.”); Aguilera-Cota v. INS, 914 F.2d 1375,
1380 (9th Cir. 1990) (“We have previously tried to make it clear that asylum applicants are not required to produce documentary evidence of
events such as those involved here.”).
8
8 U.S.C. § 1158(b)(1)(B)(ii).
9
See Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000).
10
See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000); CordonGarcia v. INS, 204 F.3d 985, 992-93 (9th Cir. 2000).
11
See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (stating that the BIA failed to give notice to the applicant that his credibility
was in question and an opportunity to respond even though the IJ had
found him credible); Velarde v. INS, 140 F.3d 1305, 1310 (9th Cir. 1998)
(“It is also unclear to what extent the BIA, like the IJ, discounted the
weight of Velarde’s uncontroverted testimony (despite finding her credible) due to a lack of ‘corroboration.’ Ultimately, the BIA simply fails to
state why it finds that Velarde did not meet her burden, apart from the single case citation to Matter of Fuentes.” (footnote omitted)); Lopez-Reyes
v. INS, 79 F.3d 908, 912 (9th Cir. 1996) (reversing adverse credibility
determination based on an “inaccurate reading of the record and on
improper inferences”); Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th
Cir. 1990) (reversing the IJ’s adverse credibility determination that had
been based on the fact that “Aguilera’s oral testimony included information not set forth in his asylum application” and “Aguilera had no proof
that the threatening note [forming the basis of his asylum claim] had been
delivered”).

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able corroboration, regardless of any other circumstances.
Neither proposition is correct.
The burden of proof is on the asylum seeker, not the government.12 Asylum cases differ from ordinary civil cases in that
the events happened in foreign countries, and the expense and
difficulty of obtaining corroboration can be overwhelming.
Persecuting regimes may control the flow of information so
that corroboration is impossible, despite the truth of an asylum seeker’s account. Asylum cases also differ in that
expense, difficulty, or impracticability may render it impossible to prove the falsity of an asylum seeker’s allegations of
fact. That is why we have described the whole adjudication as
an “honor system—it depends largely on the assumption that
asylum seekers will take the oath seriously, and that they will
be truthful in their testimony. . . . [I]n order for the process
to work, we must construe and enforce the oath strictly, so
that we may be more lenient elsewhere in the process.”13 In
an ordinary civil case, lawyers depose witnesses and obtain
documents to prove or disprove witnesses’ allegations, but in
asylum cases there are no depositions and usually no documents except what the asylum seeker submits and general
country information occasionally supplemented by an individualized State Department letter.
So how is the IJ supposed to decide whether someone is
lying? One way is internal consistency. If the person cannot
tell substantially the same story twice in substantially the
same way, that suggests a likelihood that the story is false.
But just because the asylum seeker does tell the story consistently, that does not establish that it is true. “That’s my story
and I’m sticking to it”14 is a comic line suggesting falsity, not
12

See 8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant
for asylum . . . .”); Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997)
(“[T]he petitioner bears the burden of persuading the IJ that his evidence
is credible . . . .”).
13
Martinez v. Holder, 557 F.3d 1059, 1065 (9th Cir. 2009).
14
See Noël Coward, Relative Values (1951) (“Yes, Peter, it is and you
needn’t look quizzical either. That’s my story and I’m sticking to it.”).

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evidence of truth. Inconsistency may suggest falsity, at least
where the differences are not of the sort that honest people
make in repeated accounts of the same events, but consistency
does not establish truth.15
Likewise, documentary evidence, or its absence, may or
may not tend to show that a story is true or false, depending
on the circumstances. Sometimes corroboration by documents
or testimony is reasonably available and any sensible litigant
would expect to have to produce it, sometimes not. We would
not expect a police report from a tyrannical regime saying,
“We tortured this individual to make him reveal his political
associates’ names.” But if the asylum seeker whose credibility
has been questioned testifies that his family was subjected to
atrocities in their home, and corroboration is readily available
because members of the family live with him in California, it
is reasonable to question his credibility if none of them testify
to corroborate his account. To be sensible, rather than a collection of arbitrary rules, asylum litigation can draw a lesson
from other litigation. In the most routine personal injury case,
when a plaintiff credibly testifies that the collision caused
$5,000 in medical expenses, the jury is likely to reject and is
free to reject his damages testimony unless it sees the medical
bills. Though it does not apply to this case, the REAL ID Act
“made asylum litigation more like other litigation” in this
respect.16
15

Of course, the IJ’s adverse credibility determination must still be supported by substantial evidence on the record as a whole. INS v. EliasZacarias, 502 U.S. 478, 481 (1992)).
16
Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009). See 8 U.S.C.
§§ 1158(b)(1)(B)(ii) and (iii) (“The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if
the applicant satisfies the trier of fact that the applicant’s testimony is
credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant
has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates

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Of course, if someone is escaping a persecuting regime, he
may need to lie his way out, and lie his way into a safe haven
to seek asylum, even though he is not generally to be distrusted. The BIA takes the position that “[t]he use of fraudulent documents to escape the country of persecution itself is
not a significant adverse factor . . . .”17 We held, consistently
with this principle, in Gulla v. Gonzales that “although Gulla
used false documents in his travels to the United States, he did
not attempt to use fraud in his dealings with the United States,”18
and therefore his “use of false documents in his fleeing from
Iraq is not a proper reason for denying asylum.”19 Ordinarily
one shows the same documents, typically a passport and perhaps a visa, to get on the plane to get out of a country, and
to get through immigration to get into the destination country,
so we have extended the Pula doctrine to the documents used
otherwise credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain the evidence. . . . Considering the totality of the circumstances, and all relevant
factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency
of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood goes
to the heart of the applicant’s claim, or any other relevant factor.”).
17
In re Pula, 19 I&N Dec. 467, 474 (BIA 1987); see also id.
(“Moreover, if the alien engaged in fraud to circumvent orderly refugee
procedures, the seriousness of the fraud should be considered. The use of
fraudulent documents to escape the country of persecution itself is not a
significant adverse factor while, at the other extreme, entry under the
assumed identity of a United States citizen with a United States passport,
which was fraudulently obtained by the alien from the United States Government; is very serious fraud.”).
18
498 F.3d 911, 916-17 (9th Cir. 2007).
19
Id. at 917.

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to get into the United States, in Akinmade v. INS20 (use of
false documents to enter the United States in certain circumstances is “wholly consistent with [an applicant’s] claim to be
fleeing persecution.”21). Similarly, we held in Turcios v. INS
that falsely claiming to be from Mexico instead of El Salvador
did not impugn credibility where the alien had reason to fear
persecution if deported to El Salvador rather than Mexico.22
And (before the REAL ID Act establishing the contrary) we
held in Kaur v. Ashcroft that where the IJ finds the asylum
seeker to be otherwise credible, the petitioner’s testimony
cannot be held insufficient to bear the burden of proof
because of lack of credible corroborating evidence, where the
corroborating evidence was not readily available because it
would have to come from persons living outside the United
States.23
[2] We have not held, and could not reasonably hold, that
an asylum applicant’s past lies may never support an adverse
credibility determination. The asylum seeker bears the burden
of proving that he has a well-founded fear of persecution “on
account of race, religion, nationality, membership in a particular social group, or political opinion.”24 If the proof he offers
depends on his testimony, as it usually does, and substantial
evidence justifies rejection of the truth of the testimony, then
an adverse credibility decision is supported. While the special
circumstances of needing to lie one’s way out of a persecuting
country and perhaps use fraudulent documents to get out of
that country and into another may weaken or vitiate the
adverse inference that might otherwise be drawn from past
lies in other circumstances, lies and fraudulent documents
20

196 F.3d 951 (9th Cir. 1999).
Id. at 955.
22
821 F.2d 1396, 1400-01 (9th Cir. 1987).
23
379 F.3d 876, 889-90 (9th Cir. 2004).
24
8 U.S.C. § 1101(a)(42)(A).
21

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when they are no longer necessary for the immediate escape
from persecution do support an adverse inference.25
[3] In this case, that is what the IJ had. Singh continued to
perjure himself and present fraudulent documents even when
he was safely in the United States, away from his supposed
persecutors in India. Moreover, he had fabricated the very
basis of his asylum application. That sufficed to raise a legitimate doubt about his credibility. And he failed to produce any
corroboration for his second story, even though he lived with
his sisters in Hayward and there was no evident reason why
he could not have brought one or both to his hearing. They
could have testified about the police visits to the family home
in India, if his allegations about those visits were true. Unlike
the asylum seeker in Zi Lin Chen v. Ashcroft,26 Harminder
Singh was given notice at the first merits hearing that a relative might be necessary to corroborate his story, and was
granted a continuance of three and a half weeks to arrange for
it.
[4] When the IJ has reason in the record to doubt the applicant’s credibility, an absence of evidence may itself suffice as
substantial evidence “on the record considered as a whole”27
for rejecting credibility, where the need for the evidence
should have been plain and the evidence would have been reasonably accessible. In this respect, we ordinarily instruct
juries that “[i]f a party fails to call a person as a witness who
has knowledge about the facts in issue, and who is reasonably
available to the party, and who is not equally available to the
other party, then you may infer that the testimony of that per25

Because they raise unique issues not applicable here, we do not
address asylum claims arising out of the expedited removal process which
an inspecting officer can institute, pursuant to 8 C.F.R. § 235.3(b), upon
an arriving alien’s entry in the United States.
26
362 F.3d 611, 620-21 (9th Cir. 2004).
27
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation
marks omitted).

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son is unfavorable to the party who could have called the witness and did not,” and that “[i]f a party fails to produce
evidence that is under that party’s control and reasonably
available to that party and not reasonably available to the
adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not.”28
Even pro se litigants in small claims court typically bring with
them the invoices, checks, photographs, and other documents
for which the need and probative value is apparent. There is
no good reason for lower standards in Immigration Court.
[5] Asylum seekers, especially when represented by counsel, do not usually face the disadvantage of an adversary from
their home countries presenting impeaching or contradictory
testimony. An IJ cannot be required to accept as true any
internally consistent story from the asylum seeker. A past
falsehood, even an intentional one, does not necessarily defeat
credibility, because it may be capable of being explained
away. Nor does a consistent story, with an explanation for
every problem including past perjury compel acceptance of
credibility. We cannot fault the IJ’s determination in Singh’s
case that “[i]n other circumstances, the court would find him
to be a credible witness. However, the court does not believe
it is inappropriate in a situation where the respondent has
admittedly perjured himself in the past to require of him additional documentation or corroborating evidence of his
claims.” Fraud in the asylum application is a “ ‘legitimate
articulable basis to question the petitioner’s credibility,’ ” and
that together with past perjury and the absence of reasonably
available corroboration amounts to a “ ‘cogent reason for [the
IJ’s] stated disbelief.’ ”29
28

3 Kevin F. O’Malley et al., Federal Jury Practice and Instructions
149-50 (5th ed. 2000).
29
Martinez v. Holder, 557 F.3d 1059, 1060 (9th Cir. 2009) (quoting
Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir. 2001).

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II.

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Continuance.

[6] Singh claims he was denied due process of law because
the IJ denied him the opportunity to put his father on the stand
to corroborate his testimony. The argument has several
strands. The main one appears to be that he should have been
given a continuance to get a written waiver. That argument
fails because he had already received a continuance of three
and a half weeks to get whatever he needed: medical evidence
of incompetence to testify, a written waiver, or anything else.
The government had pointed out the need for a written waiver
at the earlier hearing. The regulations said “written waiver,”
so there could be no surprise.
[7] Singh also appears to be questioning the IJ’s remark
that the father’s testimony “would make no difference.” That
remark was made in the context of deciding whether to grant
a second continuance. Since Singh’s counsel conceded that
the father had likewise submitted a fraudulent application,
claiming persecution in India during the two and a half years
that he and the family spent in Canada, the IJ’s comment indicates that a second continuance would not be justified by the
strength of the evidence that it might generate. Singh’s case
is not like Kaur v. Ashcroft,30 where the son was present in
court ready to corroborate his mother’s account, yet was not
permitted to testify because the IJ prejudged the persuasiveness of the as yet unheard testimony. Here, although Singh’s
father was present in court, his lawyer was not. Singh’s father
had his own asylum application pending, and was not available for testimony and cross examination because he had not
executed a written waiver of his right to confidentiality. And
while the IJ specifically requested medical evidence pertaining to the father’s competency, Singh’s father came to court
without any medical statement one way or the other. His testimony was as a practical matter unavailable despite his physical presence.
30

388 F.3d 734 (9th Cir. 2004).

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Conceivably, had the IJ continued a hearing a second time,
and allowed what would amount to a third hearing, some
weeks following, a medical statement regarding incompetency would have been obtained, or after consultation with his
own lawyer the father would have waived confidentiality in
writing, and the father would have persuasively corroborated
Singh. But the IJ was not required to grant a continuance
based on these speculations. Under 8 C.F.R. § 1003.29, an IJ
“may grant a motion for continuance for good cause shown.”
Nevertheless, “ ‘[t]he decision to grant or deny the continuance is within the sound discretion of the judge and will not
be overturned except on a showing of clear abuse.’ ”31 The IJ
did not abuse her discretion by denying a second continuance
in this case.
CONCLUSION
Substantial evidence on the record as a whole supported the
adverse credibility decision, the need for corroboration, and
the conclusion that Singh had not borne his burden of proof
to establish eligibility for asylum. The IJ did not abuse her
discretion in denying another continuance.
PETITION DENIED.

31

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)
(quoting De la Cruz v. INS, 951 F.2d 226, 229 (9th Cir. 1991)).