Singh v. Lynch ( 2016 )

14-4773
Singh v. Lynch
BIA
Christensen, IJ
A201 293 686
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 June, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 PALWINDER SINGH,
14 Petitioner,
15
16 v. 14-4773
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Palwinder Singh, pro se, Ravenna,
24 Ohio.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Cindy S.
28 Ferrer, Assistant Director;
29 Kimberly A. Burdge, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Palwinder Singh, a native and citizen of India,
10 seeks review of a December 8, 2014, decision of the BIA,
11 affirming an April 11, 2013, decision of an Immigration Judge
12 (“IJ”) denying Singh’s application for asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Palwinder Singh, No. A201 293 686 (B.I.A. Dec.
15 8, 2014), aff’g No. A201 293 686 (Immig. Ct. N.Y. City Apr. 11,
16 2013). We assume the parties’ familiarity with the underlying
17 facts and procedural history in this case.
18 Under the circumstances of this case, we have considered
19 both the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
21 524, 528 (2d Cir. 2006). The applicable standards of review
22 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
23 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 As an initial matter, although Singh did not raise his
2 specific challenges to the IJ’s adverse credibility
3 determination in his brief to the BIA, we consider Singh’s
4 arguments exhausted because, in upholding the IJ’s adverse
5 credibility determination, the BIA excused his failure to
6 exhaust by thoroughly reviewing each inconsistency finding.
7 See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d 289,
8 296-97 (2d Cir. 2006). The agency may, “[c]onsidering the
9 totality of the circumstances,” base a credibility finding on
10 inconsistencies in an asylum applicant’s statements and other
11 record evidence “without regard to whether” they go “to the
12 heart of the applicant’s claim.” 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
14 Substantial evidence supports the agency’s determination that
15 Singh was not credible.
16 The IJ reasonably relied on record inconsistencies related
17 to Singh’s activities immediately after Congress Party members
18 purportedly attacked him in April 2011. See Xiu Xia Lin, 534
19 F.3d at 166-67. Singh testified that he drove himself to the
20 doctor and then to his in-laws’ house, but a friend’s
21 corroborating letter stated inconsistently that Singh had
3
1 passed out during the attack and remained bedridden for two
2 days. When confronted with this inconsistency, Singh stated
3 inconsistently with his earlier testimony that he had walked
4 to his father’s house and that his father had driven him to the
5 doctor. The IJ was not compelled to credit Singh’s explanation
6 given that it created further inconsistencies. See Majidi v.
7 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
8 The IJ also reasonably relied on the fact that letters from
9 Singh’s father, village leader, and neighbor omitted any
10 mention of his attacks, even though they purportedly had
11 firsthand knowledge of them. See Xiu Xia Lin, 534 F.3d at 166
12 n.3 (“[a]n inconsistency and an omission are . . . functionally
13 equivalent.”).
14 Given the inconsistency findings, the agency’s adverse
15 credibility determination is supported by substantial
16 evidence, and is dispositive of Singh’s claims for asylum,
17 withholding of removal, and CAT relief. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156-57
19 (2d Cir. 2006). We do not consider Singh’s unexhausted
20 argument that the IJ erred in declining to adjourn proceedings.
21
4
1 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-24
2 (2d Cir. 2007).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
5