Kamalpret v. Sessions , 701 F. App'x 49 ( 2017 )

15-4053
Singh v. Sessions
BIA
Hom, IJ
A201 153 487
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY 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
20th day of July, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_____________________________________
SINGH KAMALPRET, AKA KAMALPREET
SINGH, AKA KAMALPRET SINGH,
Petitioner,
v. 15-4053
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua E. Bardavid, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Cindy S.
Ferrier, Assistant Director;
Kimberly A. Burdge, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
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
GRANTED, and the case is REMANDED for further consideration.
Petitioner Kamalpret Singh, a native and citizen of India,
seeks review of a November 23, 2015, decision of the BIA,
affirming an April 28, 2014, decision of an Immigration Judge
(“IJ”) denying Singh’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Singh Kamalpret, No. A201 153 487 (B.I.A. Nov.
23, 2015), aff’g No. A201 153 487 (Immig. Ct. N.Y. City Apr.
28, 2014). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v.
U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005).
I. Adverse Credibility Determination
For asylum applications like Singh’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
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circumstances,” base a credibility finding on an applicant’s
“demeanor, candor, or responsiveness,” the plausibility of his
account, inconsistencies in his statements and evidence, and
“any other relevant factor,” “without regard to whether” those
inconsistencies go “to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii). However, we have noted that
purported inconsistencies “must have at least minimal
significance,” Feng Yue Li v. Lynch, 656 F. App’x 563, 565 (2d
Cir. 2016), and that “minor date inconsistencies need not be
fatal to an applicant’s credibility,” Bi Xiang Zheng v. Holder,
574 F. App’x 24, 25 (2d Cir. 2014).
The agency relied on a one-day inconsistency concerning the
date Singh’s family’s home was allegedly attacked by Hindus.
Singh’s written statement, his father’s affidavit, and an
affidavit by Mohinder Singh all reflect that the attack on his
family’s home occurred on June 10, 2011, after Singh had left
India. Balwinder Singh, the family’s neighbor, wrote in an
affidavit that the incident occurred on June 11, 2011. The
neighbor’s one-day variation from the account supplied by the
petitioner and two others is too trivial to provide a “cogent”
reason, Wu Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016), for
finding the petitioner not credible, even allowing for the
highly deferential standard of review that is applicable.
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The agency also relied on the fact that one paragraph in
petitioner’s March 2012 asylum application concerning a May 5,
2010, attack was identical to one paragraph in an affidavit
prepared by Sucha Singh on January 3, 2013.
We have previously noted the plausible significance of
substantially similar language appearing in two documents
submitted by an asylum applicant. The strongest case for such
a circumstance tending to adversely affect an applicant’s
credibility is where his language is submitted after the
submission of similar language submitted by a previous
applicant. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d
517, 519 (2d Cir. 2007). A different, but nonetheless
troubling, circumstance is where an applicant submits
affidavits with similar language ostensibly prepared by two
different people. See Surinder Singh v. BIA, 438 F.3d 145, 148
(2d Cir. 2006). As we explained in Mei Chai Ye, it is reasonable
to infer “that an applicant who herself submits the strikingly
similar documents is the common source of those suspicious
similarities.” 489 F.3d at 519.
However, where, as in this case, another person prepares
an affidavit after a petitioner submits his application and both
documents contain similar or even identical language, the basis
for drawing an adverse credibility inference is weaker, and a
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plausible inference is that the other person is not credible.
It is also possible, as the petitioner contends in this case,
that, without his knowledge, his application was sent to the
other person to use as a template as to form and the other person
inadvertently copied the language in one paragraph of the
petitioner’s application.
It remains the task of the IJ, as fact-finder, to draw a
reasonable inference as to how the duplication of language in
this case bears on the petitioner’s credibility. Nevertheless,
because cases involving such language arise in different
circumstances, the IJ’s obligation to provide a “cogent”
reason, Wu Lin, 813 F.3d at 129, for his adverse credibility
finding requires more of an explanation than this record
reveals. Further, in light of our conclusion regarding the
one-day discrepancy, an explanation is required as to whether
and why the submission of another person’s subsequently
prepared language is sufficient to sustain an adverse
credibility inference in the specific circumstances of this
case.
We thus conclude that a remand is warranted for
reconsideration of the petitioner’s credibility, without
regard to the date issue. And, although we have no doubt that
the IJ could reconsider the matter impartially, putting the date
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issue out of his consideration, we believe there is a risk of
an appearance of partiality if the same IJ reconsiders the
matter. We therefore direct that reconsideration occur at a new
hearing before a different IJ. See Qiuyun Zheng v. Holder, 530
F. App’x 87, 89 (2d Cir. 2013).
II. Motion to Remand
In view of our decision to remand, we need not consider
whether the BIA exceeded its discretion in declining to remand
to the IJ for consideration of allegedly new evidence claimed
not to have been previously available.
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED for further consideration
before a different IJ.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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