Khera v. Gonzales
Khera v. Gonzales
Opinion of the Court
MEMORANDUM
Ritu Bala Kaur Khera, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) order denying her application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s decision for substantial evidence. Ramos-Vasquez v. INS, 57 F.3d 857, 861 (9th Cir. 1995). We grant the petition for review and remand for further proceedings.
Substantial evidence does not support the BIA’s conclusion that Khera’s two medical certificates were inconsistent with her claim that she sought medical attention after she was released from detention because the dates of treatment they contained did not conflict with her date of release. See Singh v. Gonzales, 403 F.3d 1081, 1091 (9th Cir. 2005). Moreover, the BIA’s finding is not supported by substantial evidence as it does not address Khera’s explanation as to why there were two certificates and why they contained two different dates. See Ordonez v. INS, 345 F.3d 777, 786 (9th Cir. 2003) (noting that the BIA must identify and respond to a petitioner’s explanation of a perceived inconsistency).
Substantial evidence does not support the BIA’s adverse credibility determination with respect to Khera’s religious affiliation because it inappropriately relied upon conjecture about how a true Sikh would look in a passport photograph and what last name a true Sikh would use. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000).
Because the BIA’s adverse credibility finding was improper, we remand to the BIA so that it can determine in the first instance whether, accepting Khera’s testimony as true, she is eligible for relief. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED for further proceedings.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.