Singh v. Barr ( 2020 )

16-3359
Singh v. Barr
BIA
Poczter, IJ
A205 850 029
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
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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 23rd day of April, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MANINDER SINGH,
Petitioner,
v. 16-3359
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Genet Getachew, Esq., Brooklyn,
NY.
FOR RESPONDENT: Jesse Lloyd Busen, 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 to the BIA for further
proceedings consistent with this order.
Petitioner Maninder Singh, a citizen of India, seeks
review of a September 2, 2016 decision of the BIA affirming
a December 17, 2014 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 Maninder Singh, No. A205 850 029 (B.I.A. Sept.
2, 2016), aff’g No. A205 850 029 (Immig. Ct. N.Y. City Dec.
17, 2014). We assume the parties’ familiarity with the
underlying facts and procedural history.
Under the circumstances, we have reviewed both the IJ’s
and the BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). The trier of fact may base a credibility
determination on, among other things, “the consistency
between the applicant’s or witness’s written and oral
statements,” the “internal consistency of each such
statement,” and “the consistency of such statements with
other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii).
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“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018).
Singh’s application sought to establish past persecution
by detailing a series of incidents in which Singh’s uncle, a
supporter of an opposing political party, repeatedly attacked
Singh in an effort to coerce Singh’s support for the uncle’s
party. In one of these attacks, Singh alleged that his
uncle’s coconspirators had murdered Singh’s sister. Singh
also alleged that his brother has since disappeared and is
presumed to have been kidnapped by Singh’s uncle.
The IJ denied Singh’s application based on an adverse
credibility determination, based in turn on the IJ’s
conclusion that a “central” portion of Singh’s testimony, in
which he attempted to explain his uncle’s role in local
politics, was internally inconsistent and confusing.
Certified Administrative Record (“CAR”) 41.
“When reviewing an IJ’s credibility findings, we afford
particular deference in applying the substantial evidence
standard. This deference is at its highest point where an
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IJ's credibility determinations are based on observation of
the applicant’s demeanor; but it ebbs where credibility
determinations are based on analysis of testimony. In
reviewing an IJ’s conclusions regarding credibility, we
examine whether the IJ has provided specific, cogent reasons
for the adverse credibility finding and whether those reasons
bear a legitimate nexus to the finding.” Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 116–17 (2d Cir. 2007)
(citations and internal quotation marks omitted). In
particular, “we will reverse when the adverse credibility
determination is based upon . . . an incorrect analysis of
the testimony.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004).
The IJ’s finding that Singh “was unable to explain” his
uncle’s position was not supported by substantial evidence.
A review of the hearing transcript reveals that Singh cogently
explained (through an interpreter, no less) that at the time
of the election campaign in question, his uncle was a local
party leader supporting (and allegedly coercing Singh’s
support for) a candidate for Chief Minister of Punjab, while
simultaneously seeking lesser office himself, perhaps in the
hope of someday attaining a higher elected position of his
own. CAR 90-91. Singh explained all this without
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contradicting himself. The IJ’s confusion appeared to stem
from an assumption that Singh’s uncle was himself running for
Chief Minister of Punjab. But there was nothing inconsistent
about Singh’s statements that his uncle had not “lost” the
election and yet was not Chief Minister. On Singh’s own
telling, Singh’s uncle was running for a different office
while supporting another candidate for Chief Minister in his
capacity as a local party leader.
The IJ’s analysis of that portion of Singh’s testimony
was unsupported by substantial evidence. Moreover, the IJ
described the issue of Singh’s uncle’s role as “central” to
the credibility of Singh’s asylum claim. CAR 41. “Where an
IJ relies on erroneous bases to reach an adverse credibility
determination, and we cannot confidently predict that the IJ
would reach the same conclusion in the absence of these
deficiencies, the IJ’s adverse credibility determination
cannot stand.” Hong Fei Gao, 891 F.3d at 77. In light of
the IJ’s statement that the problems with Singh’s story
relating to his uncle’s position were “central” to her
determination, we cannot “confidently predict” that the IJ
would reach the same conclusion in the absence of her error.
Our conclusion is reinforced by two other errors in the
IJ’s adverse credibility determination: In addition to the
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supposed inconsistency discussed above, the adverse
credibility determination was also based on three supposed
inconsistencies in Singh’s written and oral submissions.
First, the agency relied on Singh’s omission from his
application of the fact that he has a brother and that his
brother was kidnapped. Second, the agency relied on the
omission of Singh’s brother’s kidnapping from his parents’
written submission. Third, the agency relied on the omission
of Singh’s sister’s murder from a letter submitted by a local
leader of Singh’s village.
The IJ’s reliance on the latter two omissions is suspect
following our intervening decision in Hong Fei Gao, in which
we held that “[a]lthough an omission by a third party may
form a basis for an adverse credibility determination, under
these circumstances — where a third party’s omission creates
no inconsistency with an applicant’s own statements — an
applicant’s failure to explain third-party omissions is less
probative of credibility than an applicant’s failure to
explain his or her own omissions.” 891 F.3d at 81 (citation
omitted). Nor do those omissions tend to show that Singh
“fabricated [his] claims when considered in light of the
totality of the circumstances and in the context of the record
as a whole.” Id. at 79. Most importantly, for our purposes,
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in light of the IJ’s erroneous analysis of Singh’s testimony
about his uncle’s role and the effect of our intervening
decision in Hong Fei Gao on the weight to be placed on third-
party omissions, we “cannot confidently predict that the IJ
would reach the same conclusion in the absence of these
deficiencies” and developments. Id. at 77 (quotation
omitted). Accordingly, “the IJ’s adverse credibility
determination cannot stand.” Id. Because that adverse
credibility determination was the sole basis for the IJ and
BIA’s decisions, we will vacate both decisions in their
entirety.
For the foregoing reasons, the petition for review is
GRANTED, the decisions of the BIA and IJ are VACATED, and the
case is remanded to the BIA for further proceedings, including
remand to the IJ, as may be necessary in these circumstances.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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