noting that “most witnesses are uncomfortable and nervous when being cross-examined and, perhaps, when being questioned by a judge” but finding no reason to discount demeanor finding because petitioner, when faced with difficult questions on cross-examination or from the IJ “began to literally jump around in his seat and to squirm rather uncomfortably while testifying”
How later courts described this case
- noting that “most witnesses are uncomfortable and nervous when being cross-examined and, perhaps, when being questioned by a judge” but finding no reason to discount demeanor finding because petitioner, when faced with difficult questions on cross-examination or from the IJ “began to literally jump around in his seat and to squirm rather uncomfortably while testifying”
- concluding that vague and implausible testimony supported adverse credibility determination
- finding inconsistent testimony that “directly concern[ed] the reason why the police arrested Petitioner and the nature of the torture that he allegedly suffered”
- stating that a contrary result is not compelled where there is “[t]he possibility of drawing two inconsistent con- *589 elusions from the evidence”
Written by the judges who cited it.
The opinion
MICHAEL DALY HAWKINS, Circuit Judge,
dissenting:
This case rises or falls on whether Petitioner is who he says he is. If he is, then he was a leader in his native village in India, arrested but never prosecuted, and unquestionably tortured by the Indian police on account of his protest against police treatment of Sikhs and is quite likely to receive, the same treatment if returned to India. If he is not, then no other matter of credibility has any importance and his petition should fail. While the majority minimizes the significance of Petitioner’s identity to the Immigration Judge (“IJ”), the IJ’s adverse credibility determination is based almost entirely on Petitioner’s identity. On at least three separate occasions, the IJ’s opinion underscores the importance of Petitioner’s identity. The IJ begins her analysis by stating: “The big question, of course, because of respondent’s use of another name throughout the initial proceedings is whether respondent is truly Hari Singh.” Yet, despite this emphasis, the IJ never asked Petitioner the reason for his “name change,” gave any indication that his true identity was significant, or that she questioned whether Petitioner was who he claimed to be.
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999), reiterated our longstanding recognition that the Fifth Amendment guarantees due process in deportation proceedings, see also Ramirez v. INS, *1154 550 F.2d 560, 563 (9th Cir.1977), and requires that an asylum seeker receive a full and fair hearing. See, e.g., Campos-Sanchez, 164 F.3d at 450 ; Castillo-Villagra v. INS, 972 F.2d 1017, 1018 (9th Cir.1992); Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir.1990). Campos-Sanchez held that where the IJ previously found the petitioner credible, “the BIA must provide petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.” 164 F.3d at 450 .
Here, we have the opportunity to apply these fundamental due process principles to an even more critical stage in the asylum process — the immigration hearing itself. As in Campos-Sanchez , the record reveals that at no point in the proceeding did the IJ advise Petitioner that his identity was in issue. Despite engaging in a number of lengthy colloquies with Petitioner, the IJ never asked him, directly or indirectly, about his use of a different name at earlier stages in the immigration proceedings. Moreover, although Petitioner knew that as a general matter his credibility would be at issue when he testified before the IJ, he had no indication that his identity would play such a crucial role in the IJ’s decision to deny asylum. Under these circumstances, Petitioner is no less deserving of the basic due process principles upon which Campos-Sanchez relied— notice and an opportunity to respond.
If Petitioner is who he claims to be, then the other proffered reasons for rejecting his credibility are not supported by substantial evidence. While the majority places great weight on the IJ’s comment regarding Petitioner’s demeanor, the IJ’s discussion of Petitioner’s demeanor constituted but a single sentence. There is no evidence that Petitioner was evasive or untruthful, see Turcios v. INS, 821 F.2d 1396, 1400 (9th Cir.1987), only that he appeared uncomfortable with questions posed on cross-examination and by the IJ. Given that Petitioner’s asylum claim is based on arrest, abuse and torture by government officials, and that he does not understand English and was testifying through an interpreter, his reaction seems entirely understandable and does not provide a proper basis upon which to reject his credibility. Cf. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141-42 (9th Cir.1988); Turcios, 821 F.2d at 1400 .
Moreover, the internal inconsistencies outlined by the majority do not go to the heart of petitioner’s asylum claim. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256-57 (9th Cir.1992). His description of the removal of his fingernail, instead of explicitly referring to his deformed thumb, is simply not a basis for rejecting his testimony. Given that Petitioner was describing a traumatic event through an interpreter, his description of his injury, however grammatically incorrect, is trivial. See Damaize-Job v. INS, 787 F.2d 1332, 1337-38 (9th Cir.1986). Likewise, any significance attached to how the names of the police officers came to the attention of the police superintendent is misplaced, because the record reflects that the exchange between Petitioner and the IJ on this matter was frustrated by communication problems.
Similarly, the alleged inconsistency between Petitioner’s written application and oral testimony is in fact not an inconsistency at all. The two explanations for his first arrest — that he was responsible for a newspaper article written about Gurdial’s death and that he was responsible for the suspension of a police officer, Ajit Singh (“Ajit”) — are not only not mutually exclusive, they easily co-exist. Since Petitioner was responsible for the protest that the article described which was followed by Ajit’s suspension, it is entirely possible, indeed logical, that Petitioner may be responsible for an article about the Gurdial death and for the suspension of Ajit. Such additional information brought out during Petitioner’s testimony does not create an inconsistency and is not a legitimate reason to reject his credibility. See Aguilera-Cota v. INS, 914 F.2d 1375, 1381-82 (9th Cir.1990).
Petitioner’s testimony was also dismissed because the IJ found the events *1155 described implausible. However, we have consistently stated that personal conjecture about what persecutors would or would not have done is not a substitute for substantial evidence. See, e.g., Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996); Del Valle v. INS, 776 F.2d 1407, 1413 (9th Cir.1985). Finally, the contention that Petitioner’s testimony was too closely tied to newspaper articles and therefore not credible places Petitioner between the proverbial rock and a hard place. As the IJ admitted, Petitioner’s testimony was “fairly specific and detailed.” Moreover, the majority and the IJ overlook that Petitioner’s testimony did provide information and details not found in the newspaper articles, including: (1) the names of the seven members who assisted Petitioner in his duties as village leader; (2) the event where Gurdial’s sister-in-law was killed; (3) Petitioner’s own torture, beating and arrest; and (4) Petitioner’s attempt to contact the police superintendent.
Because the sine qua non of the IJ’s adverse credibility finding was Petitioner’s identity, I would apply the due process principles outlined in Campos-Sanchez, 164 F.3d at 450 , and remand for a new hearing on Petitioner’s identity.