Singh v. Lynch ( 2016 )

15-2560
Singh v. Lynch
BIA
Hom, IJ
A200 893 817
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 29th day of September, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JORAWAR SINGH,
14 Petitioner,
15
16 v. 15-2560
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dalbir Singh, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer; Principal Deputy
26 Assistant Attorney General; Anthony
27 C. Payne, Assistant Director;
28 Kathleen K. Volkert, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Jorawar Singh, a native and citizen of India,
6 seeks review of a July 14, 2015, decision of the BIA affirming
7 a July 29, 2014, decision of an Immigration Judge (“IJ”) denying
8 Singh’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Jorawar Singh, No. A200 893 817 (B.I.A. July 14, 2015), aff’g
11 No. A200 893 817 (Immig. Ct. N.Y. City July 29, 2014). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed the decisions of both the IJ and BIA. Ming
15 Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The
16 applicable standards of review are well established. 8 U.S.C.
17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
18 (2d Cir. 2008).
19 Singh does not challenge the pretermission of asylum on
20 timeliness grounds or the denial of his claim of future

The Government moves for summary denial of the petition. We deny
that motion. Summary denial requires the Government to demonstrate
that a petition is frivolous. See Pillay v. INS, 45 F.3d 14, 17 (2d
Cir. 1995). It has not done so here. Accordingly, we review the
petition in its entirety on the merits.
2
1 persecution by the Bharatiya Janata Party (“BJP”).
2 Accordingly, we address only the adverse credibility
3 determination as it relates to Singh’s application for
4 withholding of removal and CAT relief based on his alleged fear
5 of persecution by the Congress Party.
6 For applications like Singh’s, governed by the REAL ID Act,
7 the agency may, “[c]onsidering the totality of the
8 circumstances,” base a credibility finding on an applicant’s
9 “demeanor, candor, or responsiveness,” and inconsistencies in
10 his statements and evidence, “without regard to whether” those
11 inconsistencies go “to the heart of the applicant’s claim.” 8
12 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534
13 F.3d at 163-64. “We defer . . . to an IJ’s credibility
14 determination unless, from the totality of the circumstances,
15 it is plain that no reasonable fact-finder could make such an
16 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
17 We defer to the agency’s decision for several reasons.
18 First, credibility determination was properly based on the
19 inconsistency between Singh’s testimony and application about
20 whether Congress Party members broke one or both of his father’s
21 legs. Id. Singh’s application stated that Congress Party
22 members broke both his father’s legs with a baseball bat;
23 however, he testified that only one of his father’s legs was
3
1 broken. The agency reasonably rejected Singh’s explanation
2 that this discrepancy resulted from a translation error: Singh
3 confirmed before testifying that he had reviewed his
4 application and that the information was correct, and he did
5 not provide any evidence to support his claim of error. See
6 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
7 must do more than offer a plausible explanation for his
8 inconsistent statements to secure relief; he must demonstrate
9 that a reasonable fact-finder would be compelled to credit his
10 testimony.” (internal quotation marks and citation omitted)).
11 The adverse credibility determination is further supported
12 by inconsistencies between Singh’s testimony and his father’s
13 medical records about the treatment his father received for the
14 alleged injury. Xiu Xia Lin, 534 F.3d at 167. Singh testified
15 that his father’s leg was X-rayed and placed in a cast; however,
16 the doctor’s account reflected an operation. When confronted
17 with this inconsistency, Singh agreed that an operation was
18 done, but was unable to explain why that was not reflected in
19 his application or testimony. The IJ was not compelled to
20 accept Singh’s explanation that he did not understand because
21 it did not resolve his omission of the information. Majidi,
22 430 F.3d at 80.
23 The credibility determination is further supported by
4
1 inconsistencies between Singh’s testimony and credible fear
2 interview about his level of involvement with the Akali Dal
3 political party, which was the impetus for the alleged harm.
4 Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009)
5 (observing that an adverse credibility determination may be
6 based on inconsistencies relating to a credible fear interview,
7 if “the record of a credible fear interview displays the
8 hallmarks of reliability.”). Singh testified that he was an
9 active member of the party and that he posted flyers, attended
10 rallies, and spoke to people about their rights; however, he
11 stated during his credible fear interview that he was not a
12 member, just a worker and only did small jobs for the party.
13 Singh does not meaningfully challenge the reliability of his
14 interview record in his brief and, instead, contends that he
15 was nervous and could not recall fully the details of his claim.
16 But Singh did not omit that he was member of the Akali Dal
17 political party during his credible fear interview; he stated
18 explicitly that he was not. “We . . . reject the notion that
19 a petitioner’s claim that []he was nervous and distracted during
20 the credible fear interview automatically undermines or negates
21 its reliability as a source of h[is] statements.” Id. at 725.
22 Given the foregoing inconsistencies, which relate both to
23 Singh’s political activities and the alleged incidents of
5
1 persecution, the totality of the circumstances supports the
2 credibility determination. Xiu Xia Lin, 534 F.3d at 167. The
3 credibility determination is dispositive of Singh’s Congress
4 Party-based claims for withholding of removal and CAT relief
5 because those claims relied on the same factual predicate.
6 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We
7 therefore decline to reach the agency’s alternative
8 determination that Singh did not establish past persecution due
9 to a lack of sufficient harm. INS v. Bagamasbad, 429 U.S. 24,
10 25 (1976) (“As a general rule courts and agencies are not
11 required to make findings on issues the decision of which is
12 unnecessary to the results they reach.”).
13 For the foregoing reasons, the Government’s motion for
14 summary denial is DENIED and the petition for review is instead
15 DENIED on the merits. As we have completed our review, any stay
16 of removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in this
18 petition is DISMISSED as moot. Any pending request for oral
19 argument in this petition is DENIED in accordance with Federal
20 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
21 Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
6