Gurbax-Singh v. Lynch ( 2016 )

15-1244
Gurbax-Singh v. Lynch
BIA
Poczter, IJ
A200 595 756
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 14th day of July, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNIS JACOBS,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 FNU GURBAX-SINGH, AKA GURBAX
15 SINGH,
16 Petitioner,
17
18 v. 15-1244
19 NAC
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Genet Getachew, Law Office of Genet
26 Getachew, Brooklyn, New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Justin
30 Markel, Nancy E. Friedman, Senior
31 Litigation Counsel, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 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 is
4 DENIED.
5 Petitioner FNU Gurbax-Singh, a native and citizen of India,
6 seeks review of a March 19, 2015, decision of the BIA affirming
7 a January 18, 2013, decision of an Immigration Judge (“IJ”)
8 denying Gurbax-Singh’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re FNU Gurbax-Singh, No. A200 595 756 (B.I.A. Mar.
11 19, 2015), aff’g No. A200 595 756 (Immig. Ct. N.Y. City Jan.
12 18, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions “for
15 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
16 (2d Cir. 2006). The applicable standards of review are well
17 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). Asylum
19 applications such as Gurbax-Singh’s are governed by the REAL
20 ID Act, which provides that the agency, “[c]onsidering the
21 totality of the circumstances . . . may base a credibility
22 determination on” inconsistencies in an applicant’s statements
2
1 and other record evidence “without regard to whether” those
2 inconsistencies go “to the heart of the applicant’s claim.”
3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
4 Gurbax-Singh argues that the IJ should not have relied on
5 the record of the credible fear interview to find him not
6 credible, and that the IJ improperly analyzed his demeanor. As
7 the Government points out, Gurbax-Singh raised no demeanor
8 challenge before the BIA, and thus failed to exhaust this issue.
9 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
10 Cir. 2007). In any event, the IJ did not rely on demeanor in
11 making the adverse credibility determination. Gurbax-Singh
12 has waived any challenge to the remainder of the IJ’s findings
13 by failing to challenge them in his brief, and they supply
14 sufficient basis, for the adverse credibility determination.
15 See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).
16 We conclude that the IJ reasonably relied on the record of
17 the credible fear interview in finding Gurbax-Singh not
18 credible. We require the agency to “closely examine each . .
19 . interview before concluding that it represents a sufficiently
20 accurate record of the alien’s statements to merit
21 consideration in determining whether the alien is credible.”
22 Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004);
3
1 Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). A
2 credible fear interview is sufficiently reliable if it contains
3 a “‘verbatim account or transcript’ of the alien’s statements,”
4 was “‘designed to elicit the details of an asylum claim,’” and
5 contains no indication that the alien revealed information
6 reluctantly or failed to understand the interpreter’s
7 translations. Ming Zhang, 585 F.3d at 721 (quoting Guan v.
8 Gonzales, 432 F.3d 391, 396 (2d Cir. 2005)).
9 Here, the IJ conducted a lengthy analysis of the
10 reliability of the interview record, and found that:
11 Gurbax-Singh had a Punjabi interpreter and expressed no
12 difficulties understanding the interpreter; although the
13 transcript is not verbatim, it gives the questions asked and
14 Gurbax-Singh’s responses, and reveals that Gurbax-Singh was
15 given an opportunity to provide the details of his claim; and
16 Gurbax-Singh did not allege that any portion of the interview
17 record was inaccurate or that he was coerced into providing
18 specific answers. Gurbax-Singh’s attorney objected to the
19 admission of the interview only solely on the ground that she
20 had not had a chance to review it prior to the hearing, not
21 because the record was unreliable. Given these facts, the IJ
22 did not err in relying on the interview record in addressing
4
1 Gurbax-Singh’s credibility. See Ming Zhang, 585 F.3d at 721,
2 725.
3 Gurbax-Singh’s brief argues that the record is unreliable
4 because he was not allowed to review it before he signed it.
5 He raises this issue for the first time in this Court.
6 Accordingly, it is unexhausted and we decline to address it.
7 Lin Zhong, 480 F.3d at 123.
8 Moreover, the inconsistency between the credible fear
9 interview and Gurbax-Singh’s testimony supports the adverse
10 credibility determination. Xiu Xia Lin, 534 F.3d at 163-64.
11 During the credible fear interview Gurbax-Singh reported one
12 arrest and beating by police in January 2009. However, he
13 testified that he was beaten three times in 2007, 2008, and 2009,
14 and that he was never harmed in January 2009. The IJ was not
15 required to credit Gurbax-Singh’s explanation that he was
16 confused and forgot, as it did not resolve why Gurbax-Singh’s
17 memory was improved two years after the interview. Majidi v.
18 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
19 Given the IJ’s reasonable reliance on the credible fear
20 interview, and Gurbax-Singh’s failure to challenge any of the
21 IJ’s additional findings, the IJ’s adverse credibility
22 determination is supported by substantial evidence. See
5
1 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66. The
2 adverse credibility determination is dispositive of asylum,
3 withholding of removal, and CAT relief because all three claims
4 were based on the same factual predicate. Paul v. Gonzales,
5 444 F.3d 148, 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
6