Singh v. Garland ( 2021 )

19-3978
Singh v. Garland
BIA
Douchy, IJ
A087 992 719
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of May, two thousand twenty-one.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT A. KATZMANN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 TARINDER SINGH,
14 Petitioner,
15
16 v. 19-3978
17 NAC
18 MERRICK B. GARLAND,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Rachel Einbund, Esq., Law Office
24 of Rachel Einbund, PC, New York,
25 NY.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Anthony P.
1 Nicastro, Assistant Director;
2 Sheri R. Glaser, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Tarinder Singh, a native and citizen of India,
11 seeks review of a November 14, 2019, decision of the BIA
12 affirming a March 28, 2018, decision of an Immigration Judge
13 (“IJ”) denying his application for asylum, withholding of
14 removal, and protection under the Convention against Torture
15 (“CAT”). In re Tarinder Singh, No. A 087 992 719 (B.I.A. Nov.
16 14, 2019), aff’g No. A 087 992 719 (Immigr. Ct. N.Y. City Mar.
17 28, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have reviewed both the BIA’s decision and the IJ’s
20 decision for the sake of completeness. See Wangchuck v. Dep’t
21 of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
22 applicable standards of review are well established. See 8
23 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
24 67, 76 (2d Cir. 2018) (reviewing adverse credibility
2
1 determination for substantial evidence). The IJ may,
2 “[c]onsidering the totality of the circumstances,” base a
3 credibility finding on an asylum applicant’s “demeanor,
4 candor, or responsiveness,” the plausibility of his account,
5 and inconsistencies in his statements or between his
6 statements and other evidence, “without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
9 defer. . . to an IJ’s adverse credibility determination
10 unless, from the totality of the circumstances, it is plain
11 that no reasonable fact-finder could make such an adverse
12 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
14 Substantial evidence supports the agency’s adverse
15 credibility determination.
16 The IJ reasonably relied on Singh’s demeanor. See 8
17 U.S.C. § 1158(b)(1)(B)(iii). We defer to the IJ’s finding
18 that Singh’s testimony was hesitant, evasive, and frequently
19 non-responsive. See Jin Chen v. U.S. Dep’t of Justice, 426
20 F.3d 104, 113 (2d Cir. 2005) (giving “particular deference to
21 credibility determinations that are based on the
3
1 adjudicator’s observation of the applicant’s demeanor”).
2 Moreover, inconsistencies in the record support the
3 demeanor finding and the adverse credibility determination as
4 a whole. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
5 99, 109 (2d Cir. 2006) (“We can be . . . more confident in
6 our review of observations about an applicant’s demeanor
7 where . . . they are supported by specific examples of
8 inconsistent testimony.”). Singh’s written and oral
9 statements were inconsistent regarding the dates of his
10 arrests and whether both he and his father were arrested in
11 June 2009. The IJ was not required to credit his explanation
12 that he could not remember correctly. See Majidi v. Gonzales,
13 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
14 than offer a plausible explanation for his inconsistent
15 statements to secure relief; he must demonstrate that a
16 reasonable fact-finder would be compelled to credit his
17 testimony.”) (internal quotation marks and citation omitted).
18 Moreover, the IJ reasonably concluded that Singh’s
19 documentary evidence and witness testimony did not
20 rehabilitate his claim. See Biao Yang v. Gonzales, 496 F.3d
21 268, 273 (2d Cir. 2007) (“[T]he absence of corroboration in
4
1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question.”). The IJ did
3 not err in affording little evidentiary weight to the letters
4 from Singh’s father, mother, cousin, and village leader
5 because they were somewhat inconsistent with Singh’s
6 statements, the authors were not subject to cross-
7 examination, and his parents were interested parties. See
8 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
9 generally defer to the agency's evaluation of the weight to
10 be afforded an applicant's documentary evidence.”); see also
11 In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010)
12 (finding letters from friends and family insufficient to
13 support alien’s claims because the authors were interested
14 witnesses not subject to cross-examination), overruled on
15 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
16 38 (2d Cir. 2012). Similarly, although Singh’s sister
17 testified at the hearing and was subject to cross-
18 examination, her testimony further undermined Singh’s claim
19 because she could not recall whether she witnessed their
20 father’s arrest, whether that arrest occurred outside their
21 home, or if she visited Singh in the hospital after his
5
1 release from custody in June 2009.
2 Given Singh’s demeanor problems, the inconsistencies
3 among his statements and evidence, and his lack of reliable
4 corroboration, substantial evidence supports the adverse
5 credibility determination. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145
7 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
8 preclude an alien from showing that an IJ was compelled to
9 find him credible. Multiple inconsistencies would so preclude
10 even more forcefully.”). The adverse credibility
11 determination is dispositive of asylum, withholding, and CAT
12 because all three forms of relief rely on the same factual
13 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
14 Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6