Singh v. Sessions ( 2018 )

16-3683
Singh v. Sessions
BIA
Poczter, IJ
A206 088 879
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 24th day of July, two thousand eighteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 HARJINDER SINGH,
14 Petitioner,
15
16 v. 16-3683
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Anas J. Ahmed, Pannun The Firm,
24 P.C., Jackson Heights, N.Y.
25
26 FOR RESPONDENT: Chad A. Readler, Assistant
27 Attorney General; Andrew N.
28 O’Malley, Senior Litigation
29 Counsel; Kimberly A. Burdge, Trial
30 Attorney, Office of Immigration
31 Litigation, U.S. Department of
32 Justice, 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 Petitioner Harjinder Singh, a native and citizen of
6 India, seeks review of an October 6, 2016, decision of the
7 BIA affirming an October 2, 2015, decision of an
8 Immigration Judge (“IJ”) denying Singh’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Harjinder Singh,
11 No. A 206 088 879 (B.I.A. Oct. 6, 2016), aff’g No. A 206 088
12 879 (Immig. Ct. N.Y. City Oct. 2, 2015). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as the final agency decision. Shunfu Li v.
17 Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
20 66 (2d Cir. 2008).
21 The governing REAL ID Act credibility standard provides
22 that the agency must “[c]onsider[] the totality of the
23 circumstances,” and may base a credibility finding on
2
1 inconsistencies or omissions in an applicant’s or his
2 witness’s statements, “without regard to whether” they go
3 “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-
5 67. “[E]ven where an IJ relies on discrepancies or lacunae
6 that, if taken separately, concern matters collateral or
7 ancillary to the claim, the cumulative effect may
8 nevertheless be deemed consequential by the fact-finder.”
9 Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)
10 (internal citation and quotation marks omitted). “We
11 defer . . . to an IJ’s credibility determination
12 unless . . . it is plain that no reasonable fact-finder
13 could make such an adverse credibility ruling.” Xiu Xia
14 Lin, 534 F.3d at 167. Given the number of inconsistencies
15 and the inconsistency between Singh’s testimony and his
16 corroborating evidence, we conclude that substantial
17 evidence supports the agency’s adverse credibility
18 determination.
19 First, Singh’s testimony differed from his party’s
20 letter about where he lived in the United States, and Singh
21 has not challenged that finding in his brief. See Norton v.
22 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
23 sufficiently argued in the briefs are considered waived and
3
1 normally will not be addressed on appeal.”). This
2 inconsistency therefore stands as an appropriate basis for
3 the credibility determination. Xiu Xia Lin, 534 F.3d at 167
4 (“[A]n IJ may rely on any inconsistency . . . in making an
5 adverse credibility determination as long as the ‘totality
6 of the circumstances’ establishes that an asylum applicant
7 is not credible.”).
8 Second, Singh’s testimony and party’s letter differed
9 about his status in the party. Id. Singh repeatedly
10 testified that he was a worker, not a party member;
11 however, his party’s letter states that he was a long-time
12 member. Singh’s arguments that he was goaded into
13 contradicting himself and that any distinction is merely
14 semantics are unexhausted and contradicted by the record.
15 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
16 Cir. 2007) (requiring exhaustion of issues before the BIA).
17 Singh repeatedly and clearly testified that he was a
18 worker, not a party member, and government counsel
19 explicitly confirmed that Singh understood this line of
20 questioning.
21 Third, Singh’s testimony that his brother was not
22 involved with the party contradicted his brother’s letter,
23 which stated that he belonged to the party and participated
4
1 in party activities. Xiu Xia Lin, 534 F.3d at 167.
2 Although Singh now contends that his brother became
3 involved in the party after he (Singh) left India, Singh
4 testified that he did not know if his brother became
5 involved after he left India. Majidi v. Gonzales, 430 F.3d
6 77, 80 (2d Cir. 2005) (“A petitioner must do more than
7 offer a plausible explanation for his inconsistent
8 statements to secure relief; he must demonstrate that a
9 reasonable fact-finder would be compelled to credit his
10 testimony.” (internal quotation marks omitted)).
11 Accordingly, he has not presented a compelling explanation.
12 Fourth, Singh’s testimony that he had only internal
13 injuries from an attack conflicted with his doctor’s
14 description of multiple abrasions and treatment with
15 antiseptic dressings. Xiu Xia Lin, 534 F.3d at 167. Singh
16 declined an opportunity to explain through redirect. Singh
17 now attempts to recharacterize his testimony by stating
18 that he had only minor abrasions and therefore did not use
19 the antiseptic bandages given to him. This explanation is
20 both unexhausted and not supported by the record, given his
21 repeated testimony that he had only internal injuries. See
22 Lin Zhong, 480 F.3d at 122; Siewe v. Gonzales, 480 F.3d
23 160, 167-68 (2d Cir. 2007) (“Where there are two
5
1 permissible views of the evidence, the factfinder’s choice
2 between them cannot be clearly erroneous. . . . [R]ecord
3 support for a contrary inference—even one more plausible or
4 more natural—does not suggest error.” (internal quotation
5 marks omitted)).
6 Last, Singh’s lack of knowledge about the letter from
7 his party further undermined his credibility. Biao Yang v.
8 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
9 failure to corroborate his or her testimony may bear on
10 credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.”); see also
13 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
14 (2d Cir. 2006) (observing that the weight accorded to an
15 applicant’s “evidence lie[s] largely within the discretion
16 of the IJ.” (internal quotation marks omitted)). As the IJ
17 found, Singh had difficulty stating whether the author knew
18 him personally. See Siewe, 480 F.3d at 167-68.
19 Given the foregoing inconsistencies, which undermine
20 Singh’s testimony and the reliability of his evidence, we
21 conclude that the adverse credibility determination is
22 supported by the “totality of the circumstances.” Xiu Xia
23 Lin, 534 F.3d at 167. The adverse credibility determination
6
1 is dispositive of asylum, withholding of removal, and CAT
2 relief because all three claims are based on the same
3 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
4 57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe
15 Clerk of Court
7