Singh v. Barr ( 2020 )

18-1716
Singh v. Barr
BIA
Cassin, IJ
A206 034 873
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 30th day of September, two thousand twenty.
PRESENT:
JON O. NEWMAN,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.*
_____________________________________
GURMEET SINGH,
Petitioner,
v. 18-1716
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gurmeet Singh, pro se, S.
Richmond Hill, NY.
* Circuit Judge Peter W. Hall, originally a member of the panel,
is currently unavailable. Circuit Judge Jon O. Newman has
replaced Judge Hall on the panel for this matter. See 2d Cir.
IOP E(b).
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Ann M. Welhaf, 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 DENIED.
Petitioner Gurmeet Singh, pro se, a native and citizen
of India, seeks review of a May 11, 2018, decision of the BIA
affirming a July 24, 2017, 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 Gurmeet Singh, No. A 206 034 873 (B.I.A. May
11, 2018), aff’g No. A 206 034 873 (Immig. Ct. N.Y. City July
24, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history.
In lieu of filing a brief, the Government moves for
summary denial of Singh’s petition for review. Rather than
determine if the petition is frivolous as required for summary
denial, see Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995), we
2
construe the Government’s motion as its brief and deny the
petition on the merits.
Under the circumstances of this case, we have reviewed
the IJ’s decision. Mei Chai Ye v. U.S. Dep’t of Justice, 489
F.3d 517, 523 (2d Cir. 2007). The standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao
v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The agency may,
“[c]onsidering the totality of the circumstances . . . base
a credibility determination on the demeanor, candor, or
responsiveness of the applicant,” the plausibility of his
account, and inconsistencies in his statements or between his
statements and other evidence, without regard to whether they
go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
162, 163–64 (2d Cir. 2008). “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,
534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76.
Singh provided inconsistent statements during his
credible fear interview and testimony regarding which of the
3
two alleged beatings he suffered on account of his membership
in the Shiromani Akali Dal Amritsar Mann Party (“Mann Party”)
he attempted to report to the police, and he did not provide
any explanation for these discrepancies when he was offered
an opportunity to do so. 1 Singh now argues that he was
reasonably confused about the timeline because the two
attacks were similar and close in time. But he did not
present this explanation to the IJ, and this new explanation
is not compelling because the timeline was not complicated
and because of the specificity of his conflicting claims and
denials. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (internal quotation marks
1 Singh does not challenge the IJ’s reliance on the record of
his credible fear interview. Regardless, the interview
record was sufficiently reliable because it contained a clear
and detailed summary of the questions and Singh’s responses,
the questions were designed to elicit the details of Singh’s
claim, and there was no suggestion that Singh was intimidated
or did not understand the translator. See Ming Zhang v.
Holder, 585 F.3d 715, 723–25 (2d Cir. 2009); Ramsameachire v.
Ashcroft, 357 F.3d 169, 179–80 (2d Cir. 2004).
4
omitted)). 2 Moreover, the IJ reasonably concluded that
Singh’s testimony regarding his and his father’s
participation in the Mann Party was “vague.” When pressed
for details about his father’s involvement, Singh did not
clearly state when his father had joined the party. Singh
also failed to provide details regarding his own role in the
party.
Having questioned Singh’s credibility, the IJ reasonably
concluded that Singh failed to rehabilitate his testimony
with reliable corroborating evidence, and that the absence of
corroboration further undermined his credibility. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (asylum
2 The IJ may have erred in relying on a discrepancy in the
record regarding Singh’s educational history without first
offering him an opportunity to explain it because it may not
have been obvious and “trivial differences in the wording of
statements describing the same events are not sufficient to
create inconsistencies,” especially where, as here, the
applicant “rel[ies] on an interpreter [or translator] to
convey his story.” Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.
2019); see Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.
2006) (“[A]n IJ may not rest an adverse credibility finding
on non-dramatic putative contradictions or incongruities in
an alien’s narrative without first giving the applicant a
chance to reconcile the testimony.”). Even if this were
error, however, remand would not be required because the
record contains “statements that are so inconsistent that we
can be confident that the agency would not accept any kind of
explanation.” Gurung, 929 F.3d at 62.
5
applicant’s failure to corroborate may bear on his
credibility “because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question”). Even accepting Singh’s
argument that the IJ should not have discounted the two
affidavits in the record based on their similarities—which he
argues might have been expected since the two accounts were
recorded by the same notary on the same day in both English
and Punjabi—the IJ did not err in assigning these affidavits
diminished weight because Singh’s wife is an interested party
and neither affiant was available for cross-examination. See
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
2010) (finding that unsworn letters from the applicant’s
friends and family did not provide substantial support for
the applicant’s claims because they were from interested
witnesses not subject to cross-examination), overruled on
other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
38 (2d Cir. 2012); see also Y.C. v. Holder, 741 F.3d 324, 334
(2d Cir. 2013) (deferring to agency’s decision to give little
weight to letter from applicant’s spouse in China); cf. Mei
Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 526 (2d Cir.
6
2007) (suggesting that the Court would view “skeptically” an
adverse credibility determination based on similarities
between documents in different proceedings without a showing
that the IJ considered “whether it is plausible that different
[affiants] . . . , for illiteracy reasons, conveyed [truthful
information] to a scrivener tied to an unchanging style” and
“whether the same translator converted valid accounts into a
peculiarly similar story”); Surinder Singh v. BIA, 438 F.3d
145, 148 (2d Cir. 2006) (“nearly identical language” in
affidavits from purportedly different authors undermined
petitioner’s credibility). Moreover, Singh’s wife’s
affidavit was not reliable because it omitted mention of an
alleged June 2015 incident in which members of the opposing
Congress Party came to her house looking for him and
threatened her; Singh did not offer a compelling explanation
for that omission, and this was an event that his wife would
reasonably have been expected to include in her statement.
See Hong Fei Gao, 891 F.3d at 78 (“[T]he probative value of
a witness’s . . . silence on particular facts depends on
whether those facts are ones the witness would reasonably
have been expected to disclose.”). These affidavits were the
7
only evidence corroborating Singh’s claim that both of his
parents were murdered: Singh did not present his father’s
death certificate, and his mother’s death certificate did not
state her cause of death or otherwise corroborate Singh’s
claim that Congress Party members beat her to death.
Singh also failed to present reliable corroboration of
his medical treatment, since the doctor’s letter was prepared
four years after the alleged treatment and did not indicate
that it was based on contemporaneous medical records. Singh
argues that the IJ erred to the extent that she relied on the
absence of a notarization or a copy of the doctor’s
identification in assigning weight to the doctor’s letter,
but we afford IJs “considerable flexibility in determining
the authenticity of . . . documents from the totality of the
evidence.” Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir.
2008). Singh’s argument that the IJ could have called the
doctor to obtain testimony is unavailing because Singh had
the burden to prove eligibility for relief and present
evidence “without prompting from the IJ.” Chuilu Liu v.
Holder, 575 F.3d 193, 198 (2d Cir. 2009).
Given the inconsistencies in Singh’s account of the
8
events surrounding his attacks, his vague testimony regarding
his and his father’s involvement in the Mann Party, and his
failure to reliably corroborate his claims, the IJ’s adverse
credibility determination is supported by substantial
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 165–67. We do not reach the agency’s alternative
burden holding because the adverse credibility determination
was dispositive of all of Singh’s claims, which rested on the
same discredited factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156–57 (2d Cir. 2006); INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (“As a general rule courts and agencies
are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
9