Singh v. Holder , 477 F. App'x 766 ( 2012 )

10-5103-ag
Singh v. Holder
BIA
Nelson, IJ
A097 526 143
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 20th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
SUKHWANT SINGH,
Petitioner,
v. 10-5103-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Holly M. Smith, Senior Litigation
Counsel; Claire L. Workman, 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 DISMISSED in part and DENIED in part.
Sukhwant Singh, a native and citizen of India, seeks
review of a November 18, 2010, order of the BIA, affirming the
October 15, 2008 decision of Immigration Judge (“IJ”) Barbara
A. Nelson, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Sukhwant Singh, No. A097
526 143 (B.I.A. Nov. 18, 2010), aff’g No. A097 526 143 (Immig.
Ct. N.Y. City Oct. 15, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Because Singh does not present a constitutional claim or
question of law challenging the denial of his asylum
application as untimely, we dismiss the petition as to the
denial of asylum. See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(3);
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330–31
(2d Cir. 2006); Gui Yin Liu v. INS, 508 F.3d 716, 720–21 (2d
Cir. 2007). We review only the agency’s denial of withholding
of removal and CAT relief.
2
Under the circumstances of this case, we may review both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). For applications
like this one governed by the REAL ID Act of 2005, the agency
may consider the totality of the circumstance and base a
credibility finding on an applicant’s demeanor, the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Bi
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
In this case, the agency’s adverse credibility
determination is supported by substantial evidence,
specifically, identified inconsistencies between Singh’s
testimony and asylum application as to the location and length
of his 1996 arrest and detention. See Xiu Xia Lin v. Mukasey,
534 F.3d at 167; Iouri v. Ashcroft, 487 F.3d 76, 81–82 (2d
Cir. 2007) (holding that discrepancies between applicant’s
asylum application and testimony may support adverse
credibility determination). Having thus questioned Singh’s
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credibility, the agency also reasonably relied on his failure
to provide any convincing corroboration that he had been
arrested, detained, beaten, and tortured in 1996. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Letters
from Singh’s village leader and family members contained
virtually identical phrases and spelling errors, making their
authenticity questionable and, thus, further impugning Singh’s
credibility. See Mei Chai Ye v. U.S. Dep’t of Justice, 489
F.3d 517, 526 (2d Cir. 2007); Surinder Singh v. BIA, 438 F.3d
145, 148 (2d Cir. 2006).
Moreover, as the agency found, Singh himself introduced
some evidence that contradicted his allegations of past
torture. For example, a letter from Singh’s brother indicated
that Singh left India “to avoid being arrested,” but failed to
mention the alleged 1996 arrest, detention, and torture. See
Xiu Xia Lin, 534 F.3d at 166 n.3 (recognizing that “[a]n
inconsistency and an omission are, for [credibility] purposes,
functionally equivalent”).
The noted inconsistencies and lack of evidence
corroborating the alleged arrest, detention, and torture
constitute substantial evidence to support the agency’s
adverse credibility determination. See id. at 165-66.
4
Because Singh’s withholding of removal claim and CAT claim
were based on the same factual predicates, the adverse
credibility determination is dispositive as to both. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of
removal); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2005) (CAT).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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