Singh v. Holder , 483 F. App'x 639 ( 2012 )

11-2557-ag
Singh v. Holder
BIA
Vomacka, IJ
A076 846 720
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 Richard C. Lee United
States Courthouse, 141 Church Street, in the City of New
Haven, Connecticut, on the 25th day of May, two thousand
twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
ROBERT D. SACK,
Circuit Judges.
_____________________________________
HARDEV SINGH,
Petitioner,
v. 11-2557-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Hardev Singh, pro se, East Elmhurst,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Erica B. Miles, Senior Litigation
Counsel; Jesse Lloyd Busen, 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 DENIED.
Petitioner Hardev Singh, a native and citizen of India,
seeks review of a May 26, 2011, order of the BIA, affirming
Immigration Judge (“IJ”) Alan A. Vomacka’s February 23, 2009,
denial of asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Hardev Singh, No.
A076 846 720 (B.I.A. May 26, 2011), aff’g No. A076 846 720
(Immig. Ct. N.Y. City Feb. 23, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
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I. Due Process
Notwithstanding Singh’s argument to the contrary, the
parties’ submission of supplemental country conditions
evidence on remand did not violate due process. See Burger v.
Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a
violation of due process, an alien must show that [he] was
denied a full and fair opportunity to present [his] claims or
that the [INS] . . . otherwise deprived [him] of fundamental
fairness.”). Singh appears to argue that the government
unfairly received two opportunities to rebut the presumption
of a well-founded fear of persecution. However, because this
Court’s 2008 order determined only that the agency’s 1999
adverse credibility determination was not supported by
substantial evidence and remanded Singh’s case for further
proceedings, and the IJ’s 1999 decision did not contain an
alternative burden finding, Singh’s argument is not supported
by the record. Cf. Matter of Patel, 16 I. & N. Dec. 600, 601
(B.I.A. 1978) (“[R]emand is effective for the stated purpose
and for consideration of any and all matters which the
[immigration judge] deems appropriate in the exercise of his
administrative discretion or which are brought to his
attention in compliance with the appropriate regulations.”).
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II. Fundamental Change in Circumstances
As Singh demonstrated past persecution, he benefits from
the presumption of a well-founded fear of future persecution.
See 8 C.F.R. §§ 1208.13(b)(1) (asylum), 1208.16(b)(1)(i)
(withholding of removal); see also Baba v. Holder, 569 F.3d
79, 86 (2d Cir. 2009) (“The law is clear that a showing of
past persecution shifts the burden to the government on the
question of the petitioner’s well-founded fear of future
persecution.”). Once past persecution is established, the
burden rests firmly with the government to rebut this
presumption by showing, by a preponderance of the evidence,
either a “fundamental change in circumstances such that the
applicant’s life or freedom would not be threatened on account
of any of the five [protected] grounds ... upon the
applicant’s removal” or the reasonable possibility of internal
relocation within the country of removal. Kone v. Holder, 596
F.3d 141, 147 (2d Cir. 2010).
Although Singh argues that agency erred in finding that
the government had established a fundamental change in
circumstances by misinterpreting the country conditions
evidence in the record, the task of resolving conflicts in the
record evidence lies “largely within the discretion of the
agency.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir.
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2008); see also Xiao Ji Chen v. Dep’t of Justice, 471 F.3d
315, 432 (2d Cir. 2006).
In finding a fundamental change in circumstances, the BIA
reasonably noted that the 2007 State Department Report did not
reference any unlawful killings or mistreatment of Sikhs, and
that the State Department’s 2008 Issue Paper indicated that
the terrorist activities and widespread violence associated
with the Sikh insurgency and the government’s
counterinsurgency have ceased since Singh suffered
persecution. While Singh takes issue with the agency’s
conclusion that the country conditions evidence reflected a
fundamental change, where, as here, the agency’s determination
“is tethered to the evidentiary record, we will accord
deference to the finding.” Siewe v. Gonzales, 480 F.3d 160,
168-69 (2d Cir. 2007).
Singh’s argument that the agency placed excessive
reliance on Department of State reports, and his related
contention that agency ignored his contrary country conditions
evidence, are misplaced. While we have noted that such
reports “are usually the result of estimable expertise and
earnestness of purpose, and they often provide a useful and
informative overview of conditions in the applicant’s home
country,” we have cautioned against placing excessive reliance
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on such reports because they “do not automatically discredit
contrary evidence presented by the applicant, and they are not
binding on the immigration court.” Tian-Yong Chen v. INS, 359
F.3d 121, 130 (2d Cir. 2004). Thus, although State Department
reports are “probative,” see Tu Lin v. Gonzales, 446 F.3d 395,
400 (2d Cir. 2006), the IJ “is obligated to consider [] any
contrary or countervailing evidence . . . presented, as well
as the particular circumstances of the applicant’s case
demonstrated by testimony and other evidence,” Tian-Yong Chen,
359 F.3d at 130. Rather than ignoring Singh’s contrary
evidence, the agency considered his evidence and found that it
was insufficient to counter the government’s evidence of
changed country conditions or independently establish a
well-founded fear of future persecution. Accordingly, the
record does not indicate that the agency relied excessively on
the State Department reports or ignored any evidence. See
Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming that the agency
“has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”); see also
Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (noting
that the BIA is not required to expressly “parse or refute on
the record each individual argument or piece of evidence
offered by the petitioner”).
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Although Singh also submitted letters from his mother and
a city councilor regarding the Indian government’s continued
interest in him, the BIA reasonably determined that this
evidence was entitled to diminished evidentiary weight because
the letters were in conflict with the country conditions
evidence in the record and were from interested witnesses not
subject to cross examination. See Matter of H–L–H & Z–Y–Z–,
25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished
evidentiary weight to letters from interested witnesses not
subject to cross examination), rev’d on other grounds by Hui
Lin Huang v. Holder, ___ F.3d ___, 2012 WL 1003506 (2d Cir.
2012); see also Jian Hui Shao, 546 F.3d at 171.
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.
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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