Singh v. Holder , 593 F. App'x 74 ( 2014 )

13-2105
Singh v. Holder
BIA
Abrams, IJ
A093 394 054
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of December, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROBERT D. SACK,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 HARJIT SINGH,
14 Petitioner,
15
16 v. 13-2105
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Nancy E. Friedman, Senior
27 Litigation Counsel; Brooke M.
28 Maurer, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Harjit Singh, a native and citizen of India, seeks
6 review of a May 15, 2013, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) April 9, 2012, decision,
8 pretermitting his asylum application and denying his
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Harjit Singh, No.
11 A093 394 054 (B.I.A. May 15, 2013), aff’g No. A093 394 054
12 (Immig. Ct. N.Y. City Apr. 9, 2012). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009). Because Singh does not challenge the
21 pretermission of his asylum application, we address only
22 withholding of removal and CAT relief.
23
2
1 For applications such as Singh’s, governed by the REAL
2 ID Act of 2005, the agency may, “[c]onsidering the totality
3 of the circumstances,” base a credibility finding on the
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his
6 statements, “without regard to whether” they go “to the
7 heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
9 162, 167 (2d Cir. 2008) (per curiam). “We defer therefore
10 to an IJ’s credibility determination unless, from the
11 totality of the circumstances, it is plain that no
12 reasonable fact-finder could make such an adverse
13 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
14 Here, the IJ reasonably based the adverse credibility
15 determination on Singh’s admission that he lied at his 2008
16 hearing about how he traveled between Toronto and Vancouver
17 prior to arriving in the United States, and related
18 inconsistencies regarding his residence and travels in
19 Canada.
20 Initially, Singh testified that he flew to Vancouver,
21 but later admitted that he drove, completely repudiating
22 extensive testimony at his first hearing. He also provided
3
1 conflicting stories about who he lived with in Toronto and
2 for how long. Singh’s excuse, that he was told to lie,
3 fails to describe the circumstances leading to the false
4 testimony and therefore does not compel the conclusion that
5 the IJ did not consider the excuse. See Xiao Ji Chen v.
6 U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006)
7 (explaining that the agency need not “expressly parse or
8 refute on the record each and every one of [an applicant’s]
9 purported explanations for testimonial inconsistencies or
10 evidentiary gaps”); see also Majidi v. Gonzales, 430 F.3d
11 77, 80-81 (2d Cir. 2005) (holding that an IJ is not required
12 to credit any plausible explanation, but only one a “fact-
13 finder would be compelled to credit” (internal quotation
14 marks and citation omitted)).
15 Although the IJ did not explicitly consider Singh’s
16 testimony regarding his past persecution, he did not err in
17 relying primarily on Singh’s admittedly false testimony
18 about his life after fleeing India to deny the entire
19 application. Under the doctrine of falsus in uno, falsus in
20 omnibus, “a single instance of false testimony may (if
21 attributable to the petitioner) infect the balance of the
22 alien’s uncorroborated or unauthenticated evidence.” Siewe
4
1 v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). However, the
2 doctrine “does not excuse assessment of evidence that is
3 independently corroborated,” and an adverse credibility
4 determination based on false evidence relating to an
5 ancillary matter must be otherwise supported by the totality
6 of the circumstances. Id. Here, the IJ reasonably gave
7 minimal weight to the only corroborating evidence Singh
8 submitted, affidavits from his wife and a neighbor, because
9 the authors were unavailable for cross-examination. See
10 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
11 Cir. 2006) (the weight accorded to documentary evidence lies
12 largely within agency’s discretion); see also Matter of H-L-
13 H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving
14 diminished evidentiary weight to letters from “relatives and
15 friends,” because they were from interested witnesses not
16 subject to cross-examination), rev’d on other grounds by Hui
17 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
18 Accordingly, Singh’s false testimony infected the balance of
19 his claim because the incidents of alleged persecution were
20 not sufficiently corroborated with evidence independent of
21 the credibility issues. Taking the false statement, the
22 additional unexplained inconsistencies, and the failure to
23 corroborate the past persecution claim, together, the
5
1 totality of the circumstances supports the IJ’s adverse
2 credibility determination. See 8 U.S.C.
3 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
4 at 167.
5 The adverse credibility determination in this case
6 necessarily precludes success on Singh’s claims for both
7 withholding of removal and CAT relief, because the only
8 evidence of a threat to Singh’s life or freedom, or
9 likelihood of torture, depended upon his credibility. Paul
10 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
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