Singh v. Sessions ( 2018 )

17-550
Singh v. Sessions
BIA
Hom, IJ
A206 443 902
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of August, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
FATEH SINGH,
Petitioner,
v. 17-550
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dalbir Singh, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Kiley Kane,
Senior Litigation Counsel; Lynda A.
Do, Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 GRANTED, and the case is REMANDED.
Petitioner Fateh Singh, a native and citizen of India,
seeks review of a January 27, 2017, decision of the BIA
affirming a September 28, 2015, decision of an Immigration
Judge (“IJ”) denying Singh’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Fateh Singh, No. A 206 443
902 (B.I.A. Jan. 27, 2017), aff’g No. A 206 443 902 (Immig.
Ct. N.Y. City Sept. 28, 2015). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). We review the agency’s adverse
credibility determinations under a substantial evidence
standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The governing
REAL ID Act credibility standard provides as follows:
Considering the totality of the circumstances, and
all relevant factors, a trier of fact may base a
credibility determination on . . . the consistency
between the applicant’s or witness’s written and
oral statements . . . the internal consistency of
each such statement, the consistency of such
statements with other evidence of record . . . and
any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167.
In this case, the petitioner alleged persecution by
governmental authorities because of his membership in a pro-
Sikh independence party. He testified in detail that on three
occasions he was arrested, detained, and severely beaten.
These episodes occurred in 2009, 2012, and 2013. The agency
concluded that he was not credible because of what it
considered two inconsistencies in his testimony. The first
concerned his account of the medical treatment he received
3
after the 2009 and 2012 episodes. The second concerned the
source of funds expended on the petitioner’s behalf.
Petitioner was first questioned about medical treatment
he received after the 2012 episode. He said treatment was
provided by a “local doctor” in the village. Certified
Administrative Record (“CAR”) 143. Then, asked about
treatment after the 2009 episode, he said, “I received
treatment from the same village doctor.” CAR 145. Asked about
treatment after the 2013 episode, he said, “I didn’t receive
any treatment.” Id. Government counsel confronted petitioner
as follows, “Now you just testified after all three beatings
you received medical attention from a local village
official.” CAR 146. The Petitioner answered, “I received
treatment two times, not three times.” Id. When Government
counsel persisted, stating, “[Y]ou stated you were treated by
the same village helper who treated you in March 2012 and who
treated you in November 2013,” id., the Petitioner replied,
“I said I was treated once by the village doctor.” Id.
Government counsel then said, “Sir, we can replay the tape.”
Id. The IJ then said, “We don’t have to.” The petitioner
clarified that after his first beating, he was treated at a
4
hospital by Dr. J.P. Gupta. Exhibit 3E is a “medical
certificate” reporting that Dr. J.P. Gupta from J.P. Surgical
Hospital treated Fateh Singh for “lash injuries” on November
2, 2009.
The IJ concluded that there was an inconsistency between
the petitioner’s stating that he was twice treated by “a
pharmacist trained medical person” in a “village facility”
and his testimony and an exhibit showing he was treated by
Dr. Gupta at a hospital. CAR 66. Although there might be an
inconsistency, it is also possible that the IJ was led astray
by the questioning of Government counsel, who incorrectly
asserted that the petitioner said he received treatment from
a local village official on three occasions. The petitioner
refuted this incorrect statement of his testimony by
asserting that he was treated once by the village doctor and
once by Dr. Gupta at a hospital, the latter assertion
corroborated by the doctor’s certificate.
With respect to funds, the petitioner testified that the
money used to pay police officers to secure his release from
detention came from people to whom his farming family sold
grains and also from a bank. CAR 159. The petitioner testified
5
that the money “to reach here” came from the sale of land
that was his but was “on my grandfather’s name.” Id. 161.
The IJ concluded that the petitioner “testified
inconsistently that the source of the money that was used to
pay for his alleged release was based upon property owned by
his grandfather who allegedly sold portions of it to acquire
funds used by” the petitioner. CAR 66. The IJ misapprehended
what the petitioner had said. He had testified that the land
sale funds were used “to reach here,” i.e., to enable him to
travel to the United States.
In considering the second of the two alleged
inconsistencies relied on to find the petitioner not
credible, we encounter a threshold matter. With respect to
the source of funds, the argument portion of the Government’s
brief makes no attempt to support the credibility conclusion
on the ground of an alleged inconsistency, arguably
forfeiting any reliance on that ground. For his part, the
petitioner’s brief also makes no mention of the alleged
discrepancy concerning source of funds, an omission that the
Government contends shows he has “waived any challenge to the
agency’s finding.” Br. for Respondent at 18 n.6. The
6
Government cites Ahmed v. Holder, 624 F.3d 150, 153 (2d Cir.
2010), but that decision concerned forfeiture of an entire
“ruling,” not one of multiple bases for a ruling such as lack
of credibility.
Whether or not the omissions from the briefs of both
sides would entitle us to deem an argument forfeited by either
side, we are not required to do so, and we elect to consider
both of the alleged inconsistencies. The matter of the funds
is plainly not an inconsistency providing a valid basis for
an adverse credibility finding. The IJ simply misunderstood
the testimony, an understandable occurrence by a hearing
officer obliged to adjudicate several cases in a single day
and promptly dictate findings. The matter of the medical
treatment is an arguable inconsistency, but rendered
uncertain by the misleading questioning of Government
counsel. Cf. Gao v. BIA, 482 F.3d 122, 129 (2d Cir. 2007) (IJ
improperly adopted assumption in cross-examiner’s question).
Under all the circumstances, we are left with an
insufficient basis to uphold the finding of lack of
credibility, and the case must be remanded for a new hearing.
See Jin Chen v. U.S. Dept. of Justice, 426 F.3d 104, 113 (2d
7
Cir. 2005) (“[W]e will reverse where [an] adverse credibility
determination is based upon . . . an incorrect analysis of
the testimony.”) (internal quotation marks omitted). At the
hearing the details of the source of funds and the providers
of medical treatment can be fairly and fully ascertained for
such relevance, if any, as they might bear on the credibility
of the petitioner’s account of his three episodes of
persecution.
For the foregoing reasons, the petition for review is
GRANTED, ands the case is REMANDED to the BIA so that an IJ
may conduct a new hearing. 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 of Court
8