Singh v. Garland ( 2021 )

19-768
Singh v. Garland
BIA
Schoppert, IJ
A205 915 171
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 17th day of June, two thousand twenty-one.
PRESENT:
GERARD E. LYNCH,
STEVEN J. MENASHI,
Circuit Judges.*
_____________________________________
SATWINDER SINGH,
Petitioner,
v. 19-768
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
* Judge Robert A. Katzmann, originally a member of the
panel, died on June 9, 2021. The two remaining members of
the panel, who are in agreement, have determined the
matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United
States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
FOR PETITIONER: Genet Getachew, Esq., Law Office
of Genet Getachew, Brooklyn, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Kohsei Ugumori, Senior
Litigation Counsel; David J.
Schor, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Satwinder Singh, a native and citizen of
India, seeks review of a February 27, 2019, decision of the
BIA affirming a December 1, 2017, decision of an Immigration
Judge (“IJ”) denying asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). In
re Satwinder Singh, No. A 205 915 171 (B.I.A. Feb. 27, 2019),
aff’g No. A 205 915 171 (Immig. Ct. N.Y.C. Dec. 1, 2017). We
assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005). The standards of review are well established.
2
See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility
determination under substantial evidence standard).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . 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, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
determination unless, from the totality of the circumstances,
it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
at 76.
Here, substantial evidence supports the IJ’s adverse
credibility determination. Singh alleged past persecution and
a fear of future persecution from members of the Badal Party
3
and the police on account of his support for a rival political
party. The agency reasonably concluded that he was not
credible based on discrepancies between his documentary
evidence and testimony, as well as an internal inconsistency
within his testimony. The agency also reasonably concluded
that Singh did not adequately rehabilitate his account
through reliable corroboration.
First, the agency reasonably relied on a discrepancy as
to whether police or members of the Badal Party visited
Singh’s family after he left India. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Singh first testified that he had not
been threatened since leaving India and that neither police
nor Badal Party members knew that he was in the United States,
but Singh later testified that his father told him that police
and Badal Party members had visited his family in India
several times to ask about Singh’s whereabouts. Neither
Singh’s written statement nor the letters from his parents
mention any visits. The agency did not err in considering
this omission because “a credible petitioner would reasonably
have been expected to disclose” such facts when pursuing a
claim that he feared returning to India. See Hong Fei Gao,
4
891 F.3d at 79. The agency was not required to credit Singh’s
explanations that he did not think the information was needed
and did not know why his parents had not mentioned the visits.
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
The agency also reasonably relied on an inconsistency
within Singh’s testimony regarding his medical treatment in
India. Singh alleged that he received medical treatment
after two police beatings, but his testimony was internally
inconsistent about where that treatment occurred. See Likai
Gao v. Barr, 968 F.3d 137, 145 (2d Cir. 2020) (“[E]ven a
single inconsistency might preclude an alien from showing
that an IJ was compelled to find him credible. Multiple
inconsistencies would so preclude even more forcefully.”).
The agency also noted that Singh’s testimony about what
treatment he received, and whether he was treated once or
twice, was inconsistent with a letter he submitted from the
treating doctor. Singh argues on appeal that the IJ violated
his due process rights by considering the letter from the
treating doctor, since Singh had sought to withdraw that
letter at the outset of his hearing. But we need not decide
whether Singh’s due process challenge has merit because, as
5
the BIA held, even the earlier inconsistencies unrelated to
the contents of the doctor’s letter are sufficient to support
the agency’s adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167.
In addition, the agency reasonably found that Singh did
not provide reliable corroborating evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that
the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be provided
unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.”); Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007) (“[T]he absence of corroboration
in general makes an applicant unable to rehabilitate
testimony that has already been called into question.”). The
agency reasonably declined to credit letters from Singh’s
friends and family in India because the authors were not
available for cross-examination. See Y.C. v. Holder, 741
F.3d 324, 332, 334 (2d Cir. 2013); see also In re H-L-H- & Z-
Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters
from friends and family insufficient for corroboration
because these letters were from interested witnesses not
6
subject to cross-examination), overruled on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
Moreover, the IJ reasonably gave Singh’s parent’s letters
minimal weight because they used nearly identical language.
See Mei Chai Ye v. U.S. Dep’t of Just., 489 F.3d 517, 524 (2d
Cir. 2007) (“[S]triking similarities between affidavits are
an indication that the statements are ‘canned.’”).
Given the discrepancies and lack of reliable
corroboration, the adverse credibility determination is
supported by substantial evidence. See Xiu Xia Lin, 534 F.3d
at 165–66. That determination is dispositive of asylum,
withholding of removal, and CAT relief because all three
claims are based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
7