Singh v. Sessions , 712 F. App'x 819 ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GAGANDEEP SINGH,
Petitioner,
v. No. 17-9520
(Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Petitioner Gagandeep Singh is a native and citizen of India who entered the
United States illegally. He applied for asylum, withholding of removal, and relief
under the Convention Against Torture. The immigration judge (“IJ”) found that he
was not credible and denied his application. The Board of Immigration Appeals
(“BIA”) determined that the IJ’s adverse credibility determination was not clearly
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
erroneous and dismissed Mr. Singh’s appeal. We agree with the BIA’s decision and
deny the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The First Application
Mr. Singh was placed in removal proceedings when he attempted to enter the
United States without authorization in November 2015. Counsel submitted Mr.
Singh’s first Form I-589 in February 2016. As the IJ noted, Mr. Singh stated that he
feared returning to India based on his membership in Simranjit Singh Mann—a Sikh
political party. He alleged that members of an opposing Sikh political group—the
Badal party—physically attacked him in June and July 2015. According to Mr.
Singh, his refusal to change his party affiliation from the Mann party to the Badal
party prompted the attacks. He also alleged that members of the Muslim religious
majority in his home town had mistreated and threatened him.
B. The Second Application
Mr. Singh’s same attorneys filed his second Form I-589 in May 2016. The IJ
noted that the new claim alleged members of the Hindu BJP party had mistreated and
threatened Mr. Singh. Mr. Singh attached an undated letter from his village council
stating that Badal party members had beaten Mr. Singh’s family when they refused to
join their party and had threatened to torture Mr. Singh if he returned to India. The IJ
also discussed an attached translation of a newspaper article reporting that Mr. Singh
himself reported the June 2015 incident to the police.
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C. The Third Application
Shortly before the merits hearing scheduled for August 2016, Mr. Singh
retained new counsel, and the hearing was rescheduled for late September. Two
weeks before the hearing, Mr. Singh’s new lawyer filed a third Form I-589. The IJ
noted that the third application added many details and new claims not previously
presented, including the following:
 Mr. Singh’s father and uncle were founding members of the Mann party, and
after his uncle died under suspicious circumstances, his father took over a key
role in the party.
 Mr. Singh was first threatened in March 2015 by unnamed persons who told
him to quit the Mann party.
 In May 2015, three people came to see Mr. Singh and told him they were from
the Badal party and BJP (the Hindu party in power in the national Indian
government), and threatened to kill him.
 The June 2015 attack was carried out by several bullies who confronted Mr.
Singh on his way home from putting up posters commemorating a Sikh
martyr.
 Mr. Singh was beaten so badly in the June attack that he woke up in the
hospital.
 Mr. Singh’s father and the village council reported the June incident to the
police.
 Mr. Singh’s main function in the Mann party was to raise money for the
weddings of poor women.
 Mr. Singh met and fell in love with one of the women—a Hindu—and the
couple got engaged.
 Information about the proposed marriage between a Sikh and Hindu was
leaked to the militant wing of the BJP.
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 The July 2015 attack was carried out by two people who challenged Mr. Singh
about dating a Hindu girl without consent.
 When Mr. Singh tried to obtain consent, he was attacked by four boys who
said they would give their consent only after he became a Hindu.
 The four boys kicked him in the groin, knocked the turban off his head, and
forcibly cut his hair.
Mr. Singh also provided an affidavit from his parents, which the IJ found
notable because it failed to mention Mr. Singh’s fiancée or the beatings they suffered
at the hands of Badal party. He also submitted a new translation of the newspaper
article, which contained some significant changes, including (1) the date of the June
attack; (2) Mr. Singh’s age; (3) the goal of the attackers; and (4) the explanation for
why the police did not take any action.
D. Mr. Singh’s Testimony
The IJ said Mr. Singh testified at the hearing to additional facts that were
absent from his prior applications. For example, Mr. Singh identified his fiancée by
name for the first time. When asked for a photograph, Mr. Singh said he did not have
any, though he produced several photographs of himself. At first he told the IJ the
had never taken photographs. He later changed his testimony to say that he had taken
some photographs of her on his phone but deleted them because others sometimes
used his phone and he was afraid someone would discover the relationship.
The IJ found Mr. Singh had no good answer for the significant changes
between the translations of the newspaper article. For example, Mr. Singh could not
explain why both translations said he informed the police of the June 2015 attack
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when he testified that his father went to the police. The IJ also found significant that
Mr. Singh never mentioned his family had been beaten in any of his applications or
his testimony. According to Mr. Singh, he only recently learned of the incident even
though it was described in the village letter filed with his second application.
Finally, Mr. Singh blamed his first lawyers for failing to say anything about
his (1) fiancée, (2) work raising money for the weddings of poor women, or (3) being
threatened by Hindus.
E. The IJ’s Decision
The IJ found Mr. Singh not credible and denied relief. His reasons included
“the lack of consistency between [Mr. Singh’s] . . . applications . . . and between
those applications and his testimony, and the lack of specific and detailed testimony
and/or other evidence regarding the harm [Mr. Singh] claims based on his inter-faith
relationship, giving rise to the . . . conclusion that [he] embellished his testimony
over time.” R. at 259. Further, the IJ noted “certain important inconsistencies
between [Mr. Singh’s] documentary evidence and his application and his testimony,”
and “a key omission in [Mr. Singh’s] application and testimony in which [he] did not
include . . . a pivotal event of violence targeting his family members.” Id.
The IJ said Mr. Singh had embellished his claim, explaining that Mr. Singh
initially “presented a claim based upon the dangers associated with Sikh-centric
Punjabi politics—the Badal Party was in power in the Punjab, and he (and his family)
was known as a supporter of the rival Mann faction. While that aspect of the claim
remained in place, it was . . . amplified by a new, national (rather than regional)
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component: persecution at the hands of the Hindu-nationalist BJP Party, in power at
the national level.” Id. at 260.
The IJ also found that Mr. Singh had added an entirely new claim of “a
personal, religious dimension: the threats of the BJP were not based merely on
politics, but also on their visceral disapproval of Sikh-Hindu boyfriend-girlfriend
arrangements.” Id. The IJ further noted numerous inconsistencies between the first
and second translations. Also, both translations stated that Mr. Singh reported the
June 2015 incident to the police, but his sworn testimony was that his father went to
the police.
Finally, the IJ concluded that Mr. Singh had no reasonable explanation for his
failure to mention the beatings suffered by his family in his applications or sworn
testimony: “Here, the omission of any mention of the beating of others in his home
until confronted with the [village council] letter at the end of several hours of
testimony clearly does go to the heart of [Mr. Singh’s] claim that he has been
threatened and persecuted based on his—and his family’s—long history as prominent
members of the opposition . . . Mann party.” Id. at 265.
F. The BIA’s Decision
The BIA summarized the inconsistencies, omissions, and embellishments
detailed in the IJ’s decision and concluded the decision provided specific, cogent
reasons supported by the record for the adverse credibility finding. It rejected Mr.
Singh’s attempts to explain some of the discrepancies: “[T]he [IJ] was not required
to adopt [Mr. Singh’s] explanations when there are other permissible views of the
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evidence based on the record, . . . and the [IJ] properly based his adverse credibility
determination on the totality of the circumstances” R. at 4. See Kabba v. Mukasey,
530 F.3d 1239, 1244, 1246 (10th Cir. 2008) (holding BIA is required to apply a
“deferential standard” and review the IJ's credibility determinations “for clear error, and
only clear error”).
II. DISCUSSION
A. Standard of Review and Credibility Determinations
“[W]e review the BIA’s decision as the final agency determination and limit
our review to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d
1274, 1279 (10th Cir. 2006). But “[w]e may consult the IJ’s decision to give
substance to the BIA’s reasoning.” Razkane v. Holder, 562 F.3d 1283, 1287
(10th Cir. 2009). For example, because the BIA in this case adopted the IJ’s
rationale and summarized the IJ’s reasoning, we may consult “the IJ’s more complete
explanation of those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204
(10th Cir. 2006).
“We consider any legal questions de novo, and review the agency’s findings of
fact under that substantial evidence standard.” Elzour v. Ashcroft, 378 F.3d 1143,
1150 (10th Cir. 2004). “Under that test, our duty is to guarantee that factual
determinations are supported by reasonable, substantial and probative evidence
considering the record as a whole.” Id. The substantial evidence standard is “highly
deferential.” Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004).
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“Credibility determinations are factual findings . . . subject to the substantial
evidence test.” Uanreroro, 443 F.3d at 1204. Where, as here, “the BIA’s decision
relies upon an IJ’s initial findings, we must ensure that such determinations are
substantially reasonable.” Id. (internal quotation marks omitted).
In making credibility determinations, the trier of fact should consider “the
totality of the circumstances, and all relevant factors.” 8 U.S.C. §1158(b)(1)(B)(iii).
Those factors include “the consistency between the applicant’s or witness’s written
and oral statements . . . the internal consistency of each such statement, the
consistency of such statements with other evidence of record . . . without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” Id. “Because an alien’s testimony alone may support an
application for withholding of removal or asylum, the IJ must give specific, cogent
reasons for disbelieving it.” Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004)
(citation and internal quotation marks omitted).
In reviewing the credibility determination at issue here, we do not determine how
we would decide the issue de novo or whether any reasonable factfinder could find the
petitioner credible. Instead, under the deferential substantial evidence standard, we must
affirm the adverse credibility finding “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Uanreroro, 443 F.3d at 1204 (brackets and
internal quotation marks omitted).
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B. Analysis
Mr. Singh argues the BIA wrongly affirmed the IJ’s adverse credibility
determination.1 First, he contends the BIA failed to consider his original lawyers’
allegedly shoddy work on the first two applications caused omissions and
inconsistencies. But the government persuasively argues that “any assumed error on
the part of [Mr. Singh’s] prior counsel does not begin to explain the problems with
[his] credibility throughout the entire proceedings.” Resp. Br. at 17. The IJ and BIA
provided numerous grounds to disbelieve Mr. Singh beyond “errors” that might be
attributed to his first lawyers.
Second, Mr. Singh argues his difficulties with the English language and
cultural differences account for the omissions and inconsistencies. For example, he
says that he “is a Punjabi speaking Sikh of Indian ethnicity. As such, he struggled to
communicate with counsel and often relied on the translation of a fellow detainee.”
Pet. Opening Br. at 18. But he points to no specific examples linking these factors to
an omission or inconsistency, and there is no record evidence to support these
arguments.
Third, Mr. Singh argues that “[t]o affect an asylum or withholding claim, an
inconsistency must be material.” Id. at 20. But the governing statute provides that in
making a credibility determination, the trier of fact should consider “the totality of
the circumstances, and all relevant factors . . . without regard to whether an
1
The parties agree that Mr. Singh was not entitled to relief on any of his
claims in the absence of credible testimony.
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inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. §1158(b)(1)(B)(iii) (emphasis added).
Fourth Mr. Singh suggests that because the medical records corroborate his
claims that he was injured in the June and July 2015 attacks, substantial evidence did
not support the BIA’s decision. He also points to other evidence as bolstering his
credibility. “[I]t is not our prerogative to reweigh the evidence, but only to decide if
substantial evidence supports the IJ’s decision.” Yuk v. Ashcroft, 355 F.3d 1222,
1236 (10th Cir. 2004).
III. CONCLUSION
Under the deferential substantial evidence standard, we uphold the adverse
credibility ruling. The IJ gave specific, cogent, and detailed reasons. And the BIA
highlighted many of the inconsistencies, omissions, and embellishments that the IJ
identified. No reasonable adjudicator would be compelled to reach a different
conclusion.
The petition for review is denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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