Singh v. Barr ( 2019 )

17-2931
Singh v. Barr
BIA
Kolbe, IJ
A202 065 218
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 22nd day of November, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
MAKHAN SINGH,
Petitioner,
v. 17-2931
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jaspreet Singh, Esq., Jackson
Heights, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Greg D. Mack,
Senior Litigation Counsel;
Shahrzad Baghai, 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 Makhan Singh, a native and citizen of India,
seeks review of an August 23, 2017, decision of the BIA
affirming a January 20, 2017, decision of an Immigration Judge
(“IJ”) denying asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Makhan
Singh, No. A202 065 218 (B.I.A. Aug. 23, 2017), aff’g No.
A202 065 218 (Immig. Ct. N.Y. City Jan. 20, 2017). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Because the BIA agreed with the IJ and “emphasize[d]
particular aspects of that decision,” we have reviewed both
decisions. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu
Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009) (reviewing
factual findings underlying burden of proof determinations
under the substantial evidence standard); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing questions
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of law to undisputed fact de novo). The agency did not err
in finding that Singh failed to satisfy his burden of proof
given problems with his testimony and a lack of reliable
corroborating evidence that Congress Party members in India
beat him and threatened him and his father because they were
members of the Akali Dal Mann Party (“Mann Party”).
“The testimony of the applicant may be sufficient to
sustain the applicant’s burden without corroboration, but
only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the
applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
also Chuilu Liu, 575 F.3d at 196-97. “In determining whether
the applicant has met [his] burden, the trier of fact may
weigh the credible testimony along with other evidence of
record. 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.” 8 U.S.C. § 1158(b)(1)(B)(ii). “No
court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating evidence .
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. . unless the court finds . . . that a reasonable trier of
fact is compelled to conclude that such corroborating
evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
The IJ did not err in declining to credit Singh’s
evidence of his alleged persecution and in finding it
insufficient to meet his burden. The medical certificate
Singh provided to corroborate an injury was not
contemporaneous with treatment and had no foundation given
Singh’s testimony that he threw away the mailing envelope and
his admission that he did not know how the document was
created or what records the author relied on. See Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
agency’s determination of the weight afforded to an alien’s
documentary evidence.”); see also In re H-L-H- & Z-Y-Z-, 25
I. & N. Dec. 209, 214 n.5 (BIA 2010) (noting that the “failure
to attempt to prove the authenticity of a document through [8
C.F.R. § 1287.6] or any other means is significant”),
overruled on other grounds by Hui Lin Huang v. Holder, 677
F.3d 130, 133-38 (2d Cir. 2012).
Nor was the IJ required to credit the evidence Singh
submitted to corroborate his claim that Congress Party
members harmed him, which consisted of statements from the
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Mann Party president, a village leader, his mother, his uncle,
and his neighbor. The statements were prepared for Singh’s
removal proceedings, they contained some nearly identical
language, Singh’s mother was an interested witness, and the
authors were not available for cross-examination. See Y.C.,
741 F.3d at 334 (deferring to agency decision to afford little
weight to petitioner’s husband’s letter because it was
unsworn and from an interested witness); see also In re H-L-
H- & Z-Y-Z-, 25 I. & N. Dec. at 215 (finding letters from
friends and family insufficient to support alien’s claims
because the authors were interested witnesses not subject to
cross-examination), overruled on other grounds by Hui Lin
Huang, 677 F.3d at 133-38; Surinder Singh v. BIA, 438 F.3d
145, 148 (2d Cir. 2006) (determining that “the nearly
identical language in the written affidavits allegedly
provided by different people” was a proper consideration in
an adverse credibility determination). Further, a Mann Party
document, which confirmed Singh’s membership in the party,
did not contain any details of Singh’s alleged persecution
and contains a confusing postscript implying that the letter
was a template that could be forged.
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The IJ reasonably required corroboration given Singh’s
nonresponsive testimony about whether he had evidence of his
father’s political participation, and his inconsistent
testimony about when his father went missing. See 8 U.S.C.
§ 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d at 196-
97. The IJ properly identified the missing evidence. See
Chuilu Liu, 575 F.3d at 198-99. Singh testified that his
father was a member of the Mann Party, influenced his
political work, and was also threatened by the Congress Party,
but he did not produce a letter from his father. The agency
was not required to credit his explanation that his father
could not provide a letter given Singh’s inconsistent
testimony about when his father went missing. See 8 U.S.C.
§ 1252(b)(4)(B); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotation marks
omitted)). And despite submitting a letter from the Mann
Party about his own membership, he did not provide similar
information about his father’s membership. The IJ did not
err in finding this evidence reasonably available given that,
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a month prior to his hearing, Singh received a membership
confirmation letter from the Mann Party that his father had
arranged. See 8 U.S.C. § 1252(b)(4).
Given the lack of persuasive and credible testimony and
reliable corroboration, the agency did not err in finding
that Singh failed to satisfy his burden of establishing past
persecution on account of his political opinion. See 8
U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-98.
That finding is dispositive of asylum, withholding of
removal, and CAT relief because all three claims were 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. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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