Singh v. Sessions ( 2018 )

16-2574
Singh v. Sessions
BIA
Cheng, IJ
A200 813 945
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of February , two thousand eighteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 REENA RAGGI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 KRISHNA PRAKAS SINGH,
14 Petitioner,
15
16 v. 16-2574
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti Chhetry, New York,
24 NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Jessica E. Burns,
28 Senior Litigation Counsel; Juria L.
29 Jones, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
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 is
4 DENIED.
5 Petitioner Krishna Prakas Singh, a native and citizen of
6 Nepal, seeks review of a June 21, 2016, decision of the BIA
7 affirming a January 22, 2015, decision of an Immigration Judge
8 (“IJ”) denying Singh’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Krishna Prakas Singh, No. A 200 813 945 (B.I.A.
11 June 21, 2016), aff’g No. A 200 813 945 (Immig. Ct. N.Y. City
12 January 22, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005). The standards of review are
17 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 The agency may, “[c]onsidering the totality of the
20 circumstances,” base an adverse credibility determination on
21 inconsistencies or omissions in an applicant’s oral and written
22 statements and other record evidence, regardless of whether any
2
1 such discrepancies “go[] to the heart of the applicant’s claim.”
2 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64,
3 166-67. “We defer . . . to an IJ’s credibility determination
4 unless . . . it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
6 at 167.
7 The adverse credibility determination is supported by
8 substantial evidence given the inconsistencies between Singh’s
9 testimony at the merits hearing, his application, and his
10 credible fear interview. See 8 U.S.C. § 1158(b)(1)(B)(iii);
11 Xiu Xia Lin, 534 F.3d at 167. The basis of Singh’s claim was
12 that he was targeted by Maoists for his political activities
13 with the Nepali Congress Party (“NCP”). But Singh was
14 inconsistent about when and how he first encountered the
15 Maoists: he testified at the merits hearing that he was first
16 threatened by the Maoists by telephone in early December 2006;
17 but stated during his credible fear interview that his first
18 contact was when he was called into the Maoist offices.
19 Moreover, he provided differing descriptions of the incident,
20 stating at his interview that he was called in to talk about
21 the Maoists’ intent to recruit his children, but later
22 testifying that the Maoists abducted him from his home. His
3
1 description also differed as to how long he was held and whether
2 he paid money or had money stolen, and whether and how severely
3 he was beaten. Finally, Singh was also inconsistent as to the
4 alleged incident that caused him to flee Nepal: at the
5 interview, he stated that Maoists interrupted an NCP meeting
6 of 100 to 150 people at his home; but he testified that only
7 10 to 15 people attended the meeting.
8 Singh’s explanations for these inconsistencies do not
9 compel a different result. See Majidi v. Gonzales, 430 F.3d
10 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
11 a plausible explanation for his inconsistent statements to
12 secure relief; he must demonstrate that a reasonable
13 fact-finder would be compelled to credit his testimony.”
14 (quotation marks and citation omitted)). He argues that the
15 record shows he consistently stated that the Maoists stole money
16 from him during the abduction. But he stated in his credible
17 fear interview that he gave the money to secure his release,
18 omitted any reference to the theft from his written statement,
19 and testified about it at the hearing only when pressed on
20 cross-examination. See Siewe v. Gonzales, 480 F.3d 160, 167
21 (2d Cir. 2007) (“Where there are two permissible views of the
22 evidence, the factfinder’s choice between them cannot be
4
1 clearly erroneous. . . . Rather, a reviewing court must defer
2 to that choice so long as the deductions are not illogical or
3 implausible.” (internal quotation marks omitted)).
4 Singh also challenges the reliability of the credible fear
5 interview, alleging translator and transcription errors. The
6 agency reasonably concluded that the credible fear interview
7 record was reliable. See Ming Zhang v. Holder, 585 F.3d 715,
8 725-26 (2d Cir. 2009). The questions and answers are
9 typewritten and appear to reflect a verbatim or nearly verbatim
10 account of the questions posed and Singh’s responses; the
11 interview was conducted through a Nepalese interpreter; the
12 interview record reflects that Singh understood the
13 interpreter, i.e., he was responsive to the questions and
14 confirmed that many details were correct; the record contains
15 no signs of coercion; and the questions asked appear designed
16 to elicit an asylum claim (for example, the officer asked Singh
17 follow-up questions regarding his abduction and the events
18 following it). Id. Nor was the agency required to accept
19 Singh’s explanation that he was confused during the interview,
20 given his responsive and coherent answers to the questions
21 asked. See Majidi, 430 F.3d at 80-81.
5
1 Moreover, as the agency found, Singh had multiple
2 opportunities to flag and explain errors in the initial
3 interview, but despite attaching a portion of the interview
4 record to be his original asylum application, he did not
5 acknowledge the inconsistencies until confronted at the
6 hearing.
7 Given the multiple inconsistencies related to the main
8 grounds of Singh’s asylum claim, substantial evidence supports
9 the adverse credibility determination. See 8 U.S.C.
10 § 1158(b)(10(B)(iii); Xian Tuan Ye v. U.S. Dep’t of Justice,
11 446 F.3d 189, 295 (2d Cir. 2006) (holding that “a material
12 inconsistency in an aspect of [an applicant]’s story that served
13 as an example of the very persecution from which he sought asylum
14 . . . afford[s] substantial evidence to support the adverse
15 credibility finding” (internal quotation marks omitted)).
16 Because Singh’s claims were all based on the same factual
17 predicate, the adverse credibility determination is
18 dispositive of asylum, withholding of removal, and CAT relief.
19 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
6
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
7