United States v. 2007-06-11 | 03-74390 | SINGH VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BALWINDER SINGH,
Petitioner, No. 03-74390
v. Agency No.
 A72 116 384ALBERTO GONZALES, United States
Attorney General,* OPINION
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted
September 14, 2006—San Francisco, California
Filed June 12, 2007
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Thelton E. Henderson,** District Judge.
Opinion by Judge Henderson;
Dissent by Judge Rawlinson
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General for the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The Honorable Thelton E. Henderson, Senior United States District
Judge for the Northern District of California, sitting by designation.
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COUNSEL
Inna Lipkin, Redwood City, California, for the petitioner.
Allen W. Hausman, & Blair T. O’Connor, United States
Department of Justice, Washington, D.C., for the respondent.
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OPINION
HENDERSON, District Judge:
Balwinder Singh, a Sikh citizen of India, petitions for
review of a final order of deportation issued by the Board of
Immigration Appeals (“BIA”), denying his applications for
asylum and withholding of removal under the Immigration
and Nationality Act sections 208 and 241(b)(3), 8 U.S.C.
§§ 1158, 1231(b)(3). The immigration judge (“IJ”) failed
either to make an express credibility finding, or to analyze
whether Singh’s testimony and other evidence demonstrated
he suffered past persecution and had a well-founded fear of
future persecution on the basis of a political opinion imputed
to him. Instead, the IJ drew an adverse inference from Singh’s
refusal to allow access to a Canadian immigration file under
his name, and denied his applications on that basis. He erred
in doing so. We hold that the inference alone is insufficient
to support a denial of asylum. We remand, either for the IJ to
make an explicit credibility determination, or for the IJ or the
Board to accept Singh’s testimony as true and determine
whether he has met his burden of proving statutory eligibility
for asylum.
Background
Petitioner Balwinder Singh (Singh) is a Sikh citizen of
India. He entered the United States through Canada in 1993,
and filed an application for asylum and withholding of
removal shortly thereafter. In 1999, Singh was served with a
Notice to Appear informing him he was subject to removal.
Singh concedes he is removable.
Singh contends that he was persecuted in India because of
his membership activities in the All India Sikh Student Feder-
ation (AISSF), which, among other things, advocates creation
of an independent Sikh homeland called Khalistan. At his first
asylum hearing, Singh testified that he joined the AISSF in
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January of 1989. As a member, he participated in demonstra-
tions, distributed political materials, and supported political
candidates who called for the creation of a separate Sikh
country. He testified to four incidents of persecution which he
attributed to his AISSF membership.1
First, in June of 1989, Singh was arrested after he held a
meeting at his farmhouse with other AISSF members. The
police held him and the others at the police station for two
days. They accused Singh of being “Khalistani” and of aiding
militant separatists. He was beaten with batons, hit with
straps, and had his legs pulled apart.
Singh was arrested again in October of 1989 after he partic-
ipated in a rally organized by the AISSF. Police again called
him “Khalistani.” They beat him with batons and a chair,
kicked him, hung him upside down from the ceiling, and
forced him to stand on one leg. Police also tried to force him
to implicate other AISSF members in crimes. He was held in
police custody for 5 days, and released only with the help of
members of his village.
The third arrest took place after a rally in April of 1991.
Police accused Singh of being a “Khalistani” and of turning
the populace against the government. They held him for sev-
enteen days, again beating and torturing him. Singh was
treated at a medical clinic for four or five days after his
release.
Finally, in March of 1992, Singh was arrested a fourth time
because he was wearing a saffron-colored turban (the color of
the Khalistani flag) and an AISSF badge. After this arrest, he
decided to leave India.
1He also testified that he was beaten by young Hindu men who called
him “Khalistani” while he was waiting at a bus stop even before he
became an AISSF member.
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Singh testified that an AISSF agent, who was also an
Indian government official, helped him enter the United
States. The agent gave him a passport in the name of Sohan
Lalf, which he used to leave India. He entered Canada on
March 25, 1993. He was detained at the airport, where he was
fingerprinted and signed documents. He testified that he was
released from detention several days later after the AISSF
agent paid his bond, and he crossed the border into the United
States on foot several days after that.
At the conclusion of the hearing, the government requested
an opportunity to check with Canadian immigration to verify
Singh’s story about his entry into Canada. The IJ noted that
Singh had submitted no documents in support of his asylum
application confirming his identity, and that corroborating
evidence from Canadian immigration records might support
his claim. The IJ granted the continuance.
At the next hearing, the government explained that it had
contacted the Canadian refugee immigration board, and that
the board had both a file and pending asylum application for
a “Balwinder Singh” with the same birth date as the Petitioner
here. Singh clarified that he had in fact entered Canada on his
own passport; the AISSF agent had taken the Sohan Lalf pass-
port from him during the journey from India, and given him
his real passport to use to enter Canada. Asked whether he
had filed for asylum in Canada, Singh testified through a
translator that “I don’t know about it. I don’t know what they
did” — only that officials at the Canadian airport made him
sign papers and took his fingerprints.
The government reported it was unable to obtain the Cana-
dian Balwinder Singh file, however. The Canadian agency
refused to disclose the file without a waiver of confidentiality,
and Singh had refused to sign the waiver.
At the hearing, Singh explained he refused to sign because
he was afraid the AISSF agent who had helped him reach the
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United States would harm his family if he signed the waiver.
“The agent who brought me here . . . told me, if I sign any
paper or if I know [sic] anyone else about him, he threatened
that he can get my family killed back home.” Moreover,
Singh testified that in 2000, almost seven years after he
arrived in the United States, he received a telephone call from
someone who identified himself as a Canadian immigration
official. This person knew the name of the AISSF agent, and
asked if Singh knew his whereabouts. Singh said he did not.
Singh explained that because of the threat and the telephone
call, he feared for his family’s safety. Even though the Ameri-
can and Canadian authorities already knew the AISSF agent’s
name, he felt that “[i]f I sign the paper and he comes to know
about it, then he would have my family killed.”
The IJ denied Singh’s application for asylum and his appli-
cation for withholding of removal to India. The IJ noted
Singh’s testimony about his arrests by the Punjabi police, but
denied relief because of Singh’s refusal to allow access to the
Canadian immigration file. He reasoned that the file might
bolster the merits of Singh’s asylum application by corrobo-
rating his use of the name Balwinder Singh and the date of his
entry into Canada. On the other hand, the file might reveal
claims of persecution or facts inconsistent with Singh’s testi-
mony.
Although Singh had testified about the AISSF agent’s
threat to harm his family, and the alleged phone call from
Canadian authorities looking for the agent nearly seven years
later, the IJ stressed he did not “see any connection” between
the threat, the call, and Singh’s refusal to sign a waiver.
[T]he only conclusion that the Court would draw in
this case is that it must make a negative inference
regarding the respondent’s claim to asylum. That is,
it appears to the Court that the respondent may be
withholding information from the Court, namely,
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information that rests in the Canadian Immigration
file.
The IJ used the “negative inference” to undermine all Singh’s
testimony and other evidence of persecution. He continued:
This negative inference must extend to the time the
respondent states that he spent in Canada. If it
extends so far, then it must extend to the date that the
respondent gave as the date of his departure from
India. If it extends so far, then it must extend to the
reasons that might have necessitated, if they did so
necessitate, the respondent’s departure from India.
Additionally, the negative inference must extend
actually to the merits of the respondent’s claim
because, indeed, the Canadian immigration file may
contain information contradictory to the information
that the respondent has provided to the Court on the
substance of his application for asylum.
The IJ then summarily concluded that “[f]or the foregoing
reasons,” Singh was not eligible for asylum.
The Board of Immigration Appeals affirmed the IJ’s deci-
sion without opinion. Singh petitioned for review.
When the BIA performs no independent review of the IJ”s
decision and instead defers to the IJ, we review the IJ’s deci-
sion as the final agency action. San Pedro v. Ashcroft, 395
F.3d 1156, 1156 (9th Cir. 2005); He v. Ashcroft, 328 F.3d
593, 595-96 (9th Cir. 2003). We review the IJ’s decision that
an alien has not established statutory eligibility for asylum or
withholding of removal, including factual findings, under a
“substantial evidence” standard. Zhang v. Gonzales, 408 F.3d
1239, 1246 (9th Cir. 2005), citing I.N.S. v. Elias-Zacarias,
502 U.S. 478, 481 (1992); Ge v. Ashcroft, 367 F.3d 1121,
1124 (9th Cir. 2004); Hartooni v. I.N.S., 21 F.3d 336, 340
(9th Cir. 1994).
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Discussion
We must decide whether substantial evidence supports the
IJ’s decision that Singh failed to prove his eligibility for asy-
lum under 8 U.S.C. § 1101(a)(42)(A).2 We hold that it does
not. Singh testified at length about incidents of arrest and tor-
ture he allegedly suffered because police believed he was a
militant separatist. The IJ made no finding as to Singh’s credi-
bility, and did not analyze whether his testimony met the bur-
den of proof. Instead, the IJ denied Singh’s application solely
on the basis of the negative inference he drew from Singh’s
refusal to release the Canadian records. While the IJ could
properly draw a negative inference, he could not stop there.
The IJ had to either use the inference to explicitly make an
adverse credibility finding, or, under the law of our Circuit,
treat all Singh’s testimony as true, and analyze the merits of
his claim. We hold that the inference alone — more an artifact
of legal reasoning than a factual finding — does not constitute
“substantial evidence” sufficient to support the denial.
The IJ was plainly entitled to draw a negative inference
from the fact that Singh withheld evidence. If the Canadian
file in fact related to Singh himself (and not some other Bal-
winder Singh), it could have bolstered his claims with prior
consistent statements about his history of persecution. On the
other hand, it could have undermined his claim by contradict-
ing his hearing testimony, or showing he applied for asylum
in Canada. The file was ready and waiting, but Singh refused
2Singh must show he is a person who is “unable or unwilling” to return
to his country of origin “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). He
can show he was persecuted or has a well-founded fear of persecution
because of a political opinion imputed to him by his persecutors. Singh v.
Gonzales, 406 F.3d 191, 196 (3rd Cir. 2005), citing Sangha v. I.N.S., 103
F.3d 1482, 1489 (9th Cir. 1997). Singh bears the burden of proof. 8 C.F.R.
§ 208.13(a) (2003); Ghaly v. I.N.S., 58 F.3d 1425, 1428 (9th Cir. 1995).
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to allow access to it, for reasons the judge found unconvinc-
ing.
[1] A negative inference of some kind was appropriate.
“When a party has relevant evidence in his control which he
fails to produce, that failure gives rise to an inference that the
evidence is unfavorable to him.” Int’l Union, United Automo-
bile, Aerospace and Agric. Implement Workers of Am.
(U.A.W.) v. N.L.R.B., 459 F.2d 1329, 1336 (1972), citing 2
J. Wigmore, Evidence § 285 (3d ed. 1940); see also Evis Mfg.
Co. v. F.T.C., 287 F.2d 831, 847 (9th Cir. 1961); 31A C.J.S.
Evidence § 167 (2007). The adverse inference rule is a “gen-
erally accepted principle of law.” Smith v. United States, 128
F. Supp. 2d 1227, 1232 (E.D. Ark. 2000). It applies no less
in the immigration context. See, e.g., Sidhu v. I.N.S., 220 F.3d
1085, 1089-91 (9th Cir. 2000) (immigration judge may draw
an inference that readily available testimony not presented
would be unfavorable); United States v. Solano Godines, 120
F.3d 957, 962 (9th Cir. 1997) (immigration judge may draw
an adverse inference from a defendant’s silence in response to
questioning in civil deportation proceedings).
The IJ’s inference was not, as Singh argues, simple specu-
lation or unsupported assumption. While the IJ could not
know whether the contents of the Canadian file would contra-
dict Singh’s testimony, he was entitled to draw the inference
that the evidence would be unfavorable. In doing so, he rea-
soned from facts, including Singh’s refusal to sign the confi-
dentiality waiver, and applied a well-settled principle of legal
reasoning.
[2] Typically, in the immigration context, a negative infer-
ence from a failure to produce readily available evidence goes
to the applicant’s credibility. In Sidhu v. I.N.S., 220 F.3d 1085
(9th Cir. 2000), we held that an IJ can properly rely on a neg-
ative inference from an applicant’s refusal to furnish evidence
to make an adverse credibility finding. There, the petitioner
claimed his father was a witness to many of the facts underly-
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ing his claim of persecution, and the sole witness to several
events at the core of his asylum application. Id. at 1089-90.
However, he failed to produce his father to testify on his
behalf, even though his father lived with him in a suburb not
far from where the hearing before the IJ was held. Id. We held
that the IJ reasonably drew a negative inference from the fail-
ure and used it to make an adverse credibility finding:
The IJ and BIA might well have inferred that Peti-
tioner knew that his father could not corroborate
Petitioner’s testimony, and chose not to call him as
a witness for that reason. Such an inference would
not have been unreasonable. . . . [W]here 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.
Id. at 1091-1092; see also Guo v. Ashcroft, 361 F.3d 1194,
1201 (9th Cir. 2004) (same). Failure to produce easily avail-
able, material, corroborating evidence “can constitute substan-
tial evidence supporting an adverse credibility determination.”
Chebchoub v. I.N.S., 257 F.3d 1038, 1044-45 (9th Cir. 2001)
(citation omitted); see also Ladha v. I.N.S., 215 F.3d 889, 900
n.11 (9th Cir. 2000); Kataria v. I.N.S., 232 F.3d 1107, 1114
(9th Cir. 2000).
[3] But here, the IJ made no credibility finding. Absent an
explicit credibility finding, the IJ must accept a witness’s tes-
timony as true. Lopez-Alvarado v. Ashcroft, 381 F.3d 847,
851 (9th Cir. 2004); Kalubi v. Ashcroft, 364 F.3d 1134, 1138
(9th Cir. 2004), citing Kataria, 232 F.3d at 1114; Hartooni v.
I.N.S., 21 F.3d 336, 342 (9th Cir. 1994).3 Once the applicant’s
3The dissent claims our reasoning goes astray by assuming Singh testi-
fied credibly. We do not. Rather, we follow a well-settled rule of our Cir-
cuit.
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testimony is deemed true, “the question remaining to be
answered becomes whether these facts, and their reasonable
inferences, satisfy the elements of the claim for relief.”
Ladha, 215 F.3d at 900.
[4] The IJ, therefore, had to choose one of two alternatives.
He could either make an explicit credibility finding, or take
Singh’s testimony — both as to his persecution in India and
his entry into Canada and the United States — as true, and
determine whether he proved past persecution and a well-
founded fear of future persecution on account of a political
opinion imputed to him. See Ochoa v. Gonzeles, 406 F.3d
1166, 1171-72 (9th Cir. 2005) (elements of proving persecu-
tion on the basis of imputed political opinion); Sangha v.
I.N.S., 103 F.3d 1482, 1487-89 (9th Cir. 1997) (same); Jibril
v. Gonzales, 423 F.3d 1129, 1133 (9th Cir. 2005) (burden
generally). He could not deny the asylum application on the
basis of the inference alone.
Our rules concerning corroborating evidence compel our
conclusion as well. This Court has repeatedly held that the
BIA may not require independent corroborative evidence
from an asylum applicant who testifies credibly in support of
his application. Kataria, 232 F.3d at 1113; Ladha, supra.
Simply faulting such an applicant for failure to provide poten-
tially corroborating evidence is “not a substitute for substan-
tial evidence.” Karouni v. Gonzales, 399 F.3d 1163, 1173-74
(9th Cir. 2005).
[5] Again, without a credibility determination, the IJ was
required to treat Singh’s testimony as true. Yet he penalized
Singh for his refusal to allow access to potentially corroborat-
ing evidence, negating all his testimony by force of logic
alone. The IJ’s broad use of the “negative inference” was
therefore the functional equivalent of demanding corroborat-
ing evidence. If we were to allow such an inference to deter-
mine the outcome of a case where there is no adverse
credibility determination, even an applicant deemed to testify
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credibly could never meet his burden if he withheld evidence,
or failed to supply readily available evidence. That result
would conflict with our rule that “[o]nce an applicants testi-
mony is deemed credible” (as Singh’s must be here) “no fur-
ther corroboration is required to establish the facts to which
the applicant testified.” Karouni, 399 F.3d at 1174. The IJ can
use lack of corroborating evidence to undermine Singh’s
claim only if Singh’s testimony is less than credible. See Lin
v. Gonzales, 472 F.3d 1131, 1132 (9th Cir. 2007); Sidhu, supra.4
[6] We acknowledge that there are other contexts in which
an adverse inference from a party’s refusal to produce evi-
dence can appropriately be used as an ultimate sanction. See,
e.g., Fed. R. Civ. P. 27(b)(2)(A-C) (as sanctions for refusal to
produce evidence, court may establish facts in accordance
with claim of opposing party, order that a party cannot sup-
port a designated claim or defense, or strike pleadings). But
doing so here, without the findings and analysis we require,
would run afoul of our rules that both assure immigration
decisions are reviewable, and recognize the special obstacles
to proof that many asylum applicants face. We do not require
corroborating evidence in the face of credible testimony
because “authentic refugees” are so rarely able to provide
direct corroborating evidence. See, e.g., Ladha, 215 F.3d at
4We note that several other Circuits would reach the same conclusion,
even though their rules regarding corroborating evidence differ. The Sec-
ond Circuit, for example, does allow the IJ or BIA to deny an application
for asylum for lack of corroborating evidence, but requires the adjudicator
to make an explicit credibility finding to do so. The adjudicator must spe-
cifically identify the relevant, ostensibly missing documentation, see Qiu
v. Ashcroft, 329 F.3d 140, 153 (2nd Cir. 2003), and (1) rule explicitly on
the applicant’s credibility; (2) explain why it is reasonable to expect addi-
tional corroboration in the particular case; and (3) assess the sufficiency
of the applicant’s explanation for the absence of corroborating evidence.
Diallo v. I.N.S., 232 F.3d 279, 285-90 (2nd Cir. 2000). The Eighth Circuit
similarly requires the IJ or BIA to rule explicitly on the applicant’s credi-
bility. See Eta-Nadu v. Gonzales, 411 F.3d 977, 984 (8th Cir. 2005) and
cases cited therein. The Seventh Circuit does the same. See Zheng v. Gon-
zales, 409 F.3d 804, 810 (7th Cir. 2005).
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899-901; Shire v. Ashcroft, 388 F.3d 1298-99 (9th Cir. 2004).
And, as set out above, the inference to be drawn from an
applicant’s refusal to provide readily available evidence (as
opposed to a simple failure to provide corroborating evidence)
stems in large part on an assessment of the applicant’s knowl-
edge, intent, and veracity, and so goes more appropriately to
the applicant’s credibility than to the merits of his or her
claim. While the “extent” of an inference is difficult to
review, we have well-developed substantial evidence stan-
dards for reviewing credibility findings. See, e.g., Mendoza
Manimbao v. Ashcroft, 329 F.3d 655, 658, 660 (9th Cir. 2003)
(credibility findings must be sufficient for review); Don v.
Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (reasons for
adverse determination cannot be peripheral); Ge v. Ashcroft,
367 F.3d 1121, 1126 (9th Cir. 2004) (no reliance on non-
evidence-based assumptions); Lin v. Gonzales, 434 F.3d
1158, 1160 (9th Cir. 2006) (reasons may not be based on sus-
picions, speculation, or conjecture); Singh v. Gonzales, 439
F.3d 1100, 1108 (9th Cir. 2006) (adverse determination may
not be based on minor inconsistencies). We must join other
Circuits in observing that the absence of an explicit credibility
finding here frustrates appellate review. See Soumahoro v.
Gonzales, 415 F.3d 732, 736 (7th Cir. 2005); Diallo v. I.N.S.,
232 F.3d 279, 287 (2nd Cir. 2000).
[7] Because the IJ neither made credibility findings nor
analyzed Singh’s testimony to see if he meets the criteria for
asylum, we remand the case to the Board for further proceed-
ings consistent with this opinion. See Hartooni v. I.N.S., 21
F.3d 336, 343 (9th Cir. 1994) (remanding where IJ raised
doubts about applicant’s credibility but made no express
adverse credibility finding). On remand, the Board may
remand the matter to the IJ to conduct a “full and fair” inquiry
into Singh’s credibility and issue a legally sufficient credibil-
ity determination. See Mendoza Manimbao v. Ashcroft, 329
F.3d 655, 661 (9th Cir. 2003). Alternately, the Board can
accept Singh’s testimony as true and determine whether he
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has met his burden of proof for asylum and withholding of
removal.
REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, the majority errs by
shoehorning this case into an adverse credibility analysis. The
majority goes astray, in my view, by characterizing this case
as one where the Immigration Judge (IJ) required Singh to
provide corroborating evidence despite the presentation of
credible testimony by Singh. There are two fallacies inherent
in that characterization: 1) that Singh gave credible testimony
and, 2) that the IJ required the production of corroborating
evidence. Rather, the record reflects that the IJ was unable to
assess Singh’s credibility due to Singh’s obstructionist con-
duct.
At his hearing on April 15, 2002, Singh testified that an
agent from the All-India Sikh Student Federation gave him a
passport in the name of Sohan Lalf when they left India. He
further testified that before the flight arrived in England, the
agent gave Singh a passport bearing Singh’s name, which
Singh used to enter Canada.
At his prior hearing on June 4, 2001, Singh never men-
tioned being given his own passport to enter Canada. To the
contrary, Singh left the IJ with the distinct impression that he
used the name Sohan Lalf to enter Canada. This impression
was consistent with the statement on Singh’s application that
he “travelled [sic] on another’s passport to Canada.”
The reason for Singh’s dissimulation and inconsistency
became apparent when the government reported the result of
its inquiry to the Canadian immigration agency. Indeed, the
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Canadian government had an immigration file under the same
name as Singh’s and with the same date of birth. Despite the
obvious importance of the Canadian immigration file to the
proceedings in this country, Singh refused to sign a waiver
that would allow access to the Canadian immigration file. The
importance of this file cannot be overstated. The contents of
the file would either have confirmed Singh’s tale of persecu-
tion or given the lie to his claims.
The reasons Singh gave for refusing to sign the confidenti-
ality waiver were significant factors in the IJ’s decision to
draw the negative inference resulting in denial of Singh’s
application. Singh testified that the agent “who brought [him]
here,” threatened to kill Singh’s family if Singh told anyone
about the agent. Singh also stated that sometime in the year
2000, he received a call on his cellular telephone from a per-
son identifying himself as a Canadian immigration official.
This person reportedly asked Singh about the agent who
brought Singh to Canada, advising Singh that he “should tell
them that it was he who brought [Singh] there.” Singh testi-
fied that he told the person on the telephone that he knew the
agent, but denied knowing the whereabouts of the agent.
Singh’s testimony revealed that he had no contact with the
Canadian immigration system between 1994 and the alleged
telephone call in 2000, raising the question of why Canadian
officials would contact him so long after his involvement with
that system. Neither could Singh explain how the Canadian
immigration official would have obtained Singh’s cellular
telephone number. Singh’s flimsy explanation for his refusal
to grant access to the Canadian immigration file reinforced
the IJ’s decision to draw a negative inference resulting in
denial of Singh’s asylum request.
The majority opinion acknowledges the appropriateness of
drawing a negative inference from Singh’s refusal to permit
access to the Canadian immigration file. However, the major-
ity opinion, without citation to any guiding authority, limits
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the use of that negative inference to making a finding of
adverse credibility. I respectfully disagree.
Pursuant to 8 C.F.R. § 208.13, “[t]he burden of proof is on
the applicant for asylum to establish that he or she is a refugee
as defined in section 101(a)(42) of the Act . . .” The IJ must
determine whether the evidence satisfies the Petitioner’s bur-
den to prove “the elements of the claim for relief.” Garcia-
Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004)
(citation omitted).
It is “a generally accepted principle of law” that “an
adverse inference may arise from the fact of missing evi-
dence.” Smith v. United States, 128 F. Supp. 2d 1227, 1232
(E.D. Ark. 2000). Moreover, “[t]he failure to bring before the
tribunal some circumstance, document, or witness, . . . serves
to indicate, as the most natural inference, that the party fears
to do so, and this fear is some evidence that the circumstance
or document or witness, if brought, would have exposed facts
unfavorable to the party.” International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW) v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir.
1972).
“The theory behind the rule is that, all other things being
equal, a party will of his own volition introduce the strongest
evidence available to prove his case. If evidence within the
party’s control would in fact strengthen his case, he can be
expected to introduce it[.]” Id. at 1338. “Conversely, if such
evidence is not introduced, it may be inferred that the evi-
dence is unfavorable to the party suppressing it[.]” Id. Allow-
ing an adverse inference to be drawn for failure to produce
relevant evidence “plays a vital role in protecting the integrity
of the administrative process[.]” Id.
This evidentiary presumption has arisen in various civil
contexts. For example, in Norfolk and Western Railway Co.
v. Transportation Communications International Union, 17
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F.3d 696, 701 (4th Cir. 1994), the Fourth Circuit determined
that it was permissible for the arbitration board to draw an
adverse inference from a party’s refusal “to comply with a
Board request for additional evidence.”
Additionally, in a products liability case, the Third Circuit
found that “[t]he unexplained failure or refusal of a party to
judicial proceedings to produce evidence that would tend to
throw light on the issues authorizes, under certain circum-
stances, an inference or presumption unfavorable to such
party.” Gumbs v. International Harvester, Inc., 718 F.2d 88,
96 (3d Cir. 1983) (citations omitted).
In Zapex Corp. v. NLRB, 621 F.2d 328, 334 (9th Cir. 1980),
the Board challenged the administrative law judge’s (ALJ)
“fail[ure] to draw an adverse inference from (the companies’)
failure to produce subpoenaed records[.]” Although we did
not ultimately decide whether the ALJ failed to apply the neg-
ative inference rule, we did conclude that “in view of [the
party’s] failure for reasons of inconvenience alone to produce
relevant documents, [this] supports, if not an application of
the ‘adverse inference’ rule, at least a finding that the appel-
lants did not carry their burden of proof.” Id.
The IJ’s similar conclusion in this case — that Singh’s
refusal to provide access to the Canadian file resulted in a
failure of proof — is consistent with the most analogous
authority that exists on this issue. In contrast, the majority’s
conclusion that the IJ was required to make an adverse credi-
bility determination in this circumstance is not supported by
citation to a single case. Rather, the cases cited in the majority
opinion address failure to produce corroborating evidence.
See, e.g., Sidhu v. INS, 220 F.3d 1085, 1089-90 (9th Cir.
2000) (holding that an adverse inference was permissible
when the Petitioner failed to produce corroborating evidence).
However, Sidhu and comparable cases are not dispositive for
two reasons: 1) Sidhu and similar cases merely hold that an
adverse credibility determination is permissible when easily
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available corroborating information is not produced. Those
cases do not purport to hold that the IJ is limited to making
an adverse credibility determination and has no other options
and, 2) as the IJ noted, we do not know whether the evidence
would be corroborating or disqualifying. The latter reason
highlights the philosophical weakness in the majority disposi-
tion. The majority would allow asylum applicants to blatantly
refuse to permit immigration authorities to perform a com-
plete investigation into the applicant’s eligibility for asylum.
I emphasize that the immigration officials were not seeking to
compel Singh to produce anything. Rather, the government
merely requested that Singh authorize the government to
gather this vital information itself. We should not reward
those who deliberately thwart the administrative processes we
have established to assess eligibility for asylum. As our cases
reflect, adverse credibility determinations meet with varying
results on review. Compare Turcios v. INS, 821 F.2d 1396,
1400 (9th Cir. 1987) (reversing the IJ’s determination that the
petitioner “did not establish his credibility due to his evasive-
ness in answering questions”); with Wang v. INS, 352 F.3d
1250, 1256-57 (9th Cir. 2003) (upholding the IJ’s adverse
credibility determination on “obvious evasiveness”). The
option of concluding in an appropriate case that denying
access to information that well might be dispositive justifies
denial of the application promotes respect for the administra-
tive tribunal, fosters finality and injects a measure of cer-
tainty. For these reasons, I would not require an adverse
credibility determination under the facts of this case. I would
uphold the IJ’s determination that Singh’s blatant refusal to
allow access to the Canadian immigration file warranted a
determination that he failed to carry his burden of proof.
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