Singh v. Barr ( 2019 )

16-1350
Singh v. Barr
BIA
Loprest, IJ
A200 170 125
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of April, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 TALWINDER SINGH,
14 Petitioner,
15
16 v. 16-1350
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONER: Karamvir Dahiya, Dahiya Law
24 Offices, LLC, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Sabatino F. Leo, Trial Attorney,
* The Clerk of Court is directed to amend the case caption to conform to the
above.
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Talwinder Singh, a native and citizen of
9 India, seeks review of a March 29, 2016 decision of the BIA
10 affirming a September 15, 2014 decision of an Immigration
11 Judge (“IJ”) denying his application for asylum, withholding
12 of removal, and relief under the Convention Against Torture
13 (“CAT”). In re Talwinder Singh, No. A200 170 125 (B.I.A.
14 A.K. Marsh. 29, 2016), aff’g No. A200 170 125 (Immig. Ct. N.Y. City
15 Sept. 15, 2014). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as supplemented by the BIA. See Yan Chen
19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d
22 Cir. 2018).
2
1 Asylum, Withholding of Removal, and CAT Relief
2 “The testimony of the applicant may be sufficient to
3 sustain the applicant’s burden without corroboration, but
4 only if the applicant satisfies the trier of fact that the
5 applicant’s testimony is credible, is persuasive, and refers
6 to specific facts sufficient to demonstrate that the
7 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
8 also Wei Sun, 883 F.3d at 28. “In determining whether the
9 applicant has met [his] burden, the trier of fact may weigh
10 the credible testimony along with other evidence of record.
11 Where the trier of fact determines that the applicant should
12 provide evidence that corroborates otherwise credible
13 testimony, such evidence must be provided unless the
14 applicant does not have the evidence and cannot reasonably
15 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).
16 The IJ reasonably required evidence to corroborate
17 Singh’s testimony given that his credibility was questionable
18 and his testimony unpersuasive. See id.; see also Wei Sun,
19 883 F.3d at 28. For example, the record evidence conflicted
20 with Singh’s testimony that his father was detained and killed
21 for having been a member of the Akali Dal Mann Party. Singh
22 also made inconsistent statements regarding whether he
3
1 communicates often with his family in India or avoids doing
2 so because of his continued fear of police. Further, his
3 testimony regarding his alleged arrests and detentions lacked
4 detail.
5 The IJ did not err in finding that Singh failed to
6 adequately corroborate his claims. Singh did not submit any
7 objective evidence that he was or remains a member of the
8 Akali Dal Mann Party, nor did he submit any evidence to
9 corroborate his testimony that he suffered lacerations on his
10 back from being beaten with a belt during one of his
11 detentions. The only evidence Singh submitted to corroborate
12 his arrests were affidavits from his mother and village
13 leader. Those affidavits, however, did not provide any
14 further details about his arrests. Further, the country
15 conditions evidence that he provided did not corroborate
16 Singh’s claim that police continue to target Sikh members of
17 the Akali Dal Mann Party. See, e.g., Jagtar Singh v. Holder,
18 753 F.3d 826, 832-37 (9th Cir. 2014) (concluding that a
19 fundamental change in conditions in India had occurred since
20 the 1980s and early 1990s such that “individuals are unlikely
21 to be persecuted because of their involvement with Sikh
22 separatist groups [like the Akali Dal Mann Party.]”).
4
1 For these reasons, the agency did not err in finding that
2 Singh failed to satisfy his burden of establishing past
3 persecution or a well-founded fear of persecution on account
4 of his political opinion. See 8 U.S.C. § 1158(b)(1)(B)(ii);
5 see also Wei Sun, 883 F.3d at 28. That finding is dispositive
6 of asylum, withholding of removal, and CAT relief because all
7 three claims were based on the same factual predicate. See
8 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
9 Accordingly, we do not reach Singh’s challenge to the agency’s
10 alternative basis for denying asylum—his failure to timely
11 file his application. See INS v. Bagamasbad, 429 U.S. 24,
12 25 (1976) (“As a general rule courts and agencies are not
13 required to make findings on issues the decision of which is
14 unnecessary to the results they reach.”). We further note
15 that, on appeal, Singh has abandoned any challenge to the
16 BIA’s decision declining to remand for consideration of newly
17 submitted, but previously available evidence. We therefore do
18 not review that decision. See Yueqing Zhang v. Gonzales, 426
19 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (noting that the
20 Court will not consider issues and claims abandoned in a
21 petitioner’s brief).
5
1 Due Process Claims
2 We do not consider Singh’s unexhausted claim that his
3 due process rights were violated at his hearing by the use of
4 a Punjabi translator who uses the Shahmukhi script, whereas
5 Singh speaks Punjabi but uses the Gurmukhi script. See Lin
6 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-24 (2d Cir.
7 2007) (concluding that exhaustion of administrative remedies
8 is a predicate of the Court’s subject matter jurisdiction,
9 while exhaustion of specific issues is mandatory). We note,
10 however, that the transcript reflects that Singh understood
11 the proceedings.
12 Singh next argues that the IJ violated due process by
13 declining to permit two proposed witnesses to testify at his
14 hearing. In the immigration context, “[t]o establish a
15 violation of due process, an alien must show that []he was
16 denied a full and fair opportunity to present h[is] claims or
17 that the IJ or BIA otherwise deprived h[im] of fundamental
18 fairness.” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.
19 2007) (internal quotation marks omitted). “Parties claiming
20 denial of due process in immigration cases must, in order to
21 prevail, allege some cognizable prejudice fairly attributable
22 to the challenged process.” Garcia-Villeda v. Mukasey, 531
6
1 F.3d 141, 149 (2d Cir. 2008) (internal quotation marks
2 omitted). Although a noncitizen has a right to “a reasonable
3 opportunity . . . to present evidence on [his] own behalf,”
4 8 U.S.C. § 1229a(b)(4)(B), “[d]ecisions regarding the
5 appropriate conduct of a hearing and the submission of
6 evidence are committed to the discretion of the immigration
7 judge[,]” Ahmed v. Holder, 624 F.3d 150, 156 (2d Cir. 2010)
8 (citing 8 C.F.R. § 1240.1(c)). An IJ abuses his discretion
9 in setting and enforcing deadlines for the submission of
10 evidence when (1) his “decision rests on an error of law . . .
11 or a clearly erroneous factual finding”; or (2) his “decision—
12 though not necessarily the product of legal error or a clearly
13 erroneous factual finding—cannot be located within the range
14 of permissible decisions.” Dedji v. Mukasey, 525 F.3d 187,
15 191-92 (2d Cir. 2008) (quoting Morgan v. Gonzales, 445 F.3d
16 549, 551-52 (2d Cir. 2006)).
17 The IJ did not abuse his discretion, much less violate
18 due process, in declining to permit Singh’s two proposed
19 witnesses to testify. The IJ acted within his discretion in
20 so doing because, despite having two years to prepare his
21 case, Singh did not submit a witness list before the deadline
22 set by the IJ or before the deadline provided in the
7
1 Immigration Court Practice Manual. Manual, § 3.1(b)(ii)(A),
2 (d)(ii); see Dedji, 525 F.3d at 191-92. Moreover, the
3 witnesses were caught listening to Singh’s testimony after
4 having been sequestered. The IJ thus provided Singh a full
5 and fair opportunity to present his witnesses, and he and his
6 witnesses squandered that opportunity. See Burger, 498 F.3d
7 at 134. Nor has Singh established any prejudice resulting
8 from the IJ’s action: Singh has never identified the witnesses
9 by name, described their proposed testimony in any detail, or
10 submitted their affidavits. See Garcia-Villeda, 531 F.3d at
11 149; Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (“In
12 order . . . to show . . . actual prejudice, [a petitioner]
13 must make a prima facie showing that he would have been
14 eligible for the relief and that he could have made a strong
15 showing in support of his application.”).
16 For the foregoing reasons, the petition for review is
17 DENIED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe
20 Clerk of Court
8