Singh v. Barr ( 2020 )

17-1837
Singh v. Barr
BIA
Loprest, IJ
A206 084 036
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 10th day of December, two thousand twenty.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 BACHITTER SINGH,
14 Petitioner,
15
16 v. 17-1837
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Russell J.E.
28 Verby, Senior Litigation Counsel;
29 Kristen Giuffreda Chapman, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Bachitter Singh, a native and citizen of
6 India, seeks review of a May 10, 2017, decision of the BIA
7 affirming an April 21, 2016, decision of an Immigration Judge
8 (“IJ”) denying his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Bachitter Singh, No. A206 084 036 (B.I.A. May
11 10, 2017), aff’g No. A206 084 036 (Immig. Ct. N.Y. City Apr.
12 21, 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA, i.e., minus the
16 burden finding the BIA did not reach. See Xue Hong Yang v.
17 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
18 applicable standards of review are well established. See
19 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
20 67, 76 (2d Cir. 2018).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
2
1 determination on the demeanor, candor, or responsiveness of
2 the applicant . . . , the consistency between the
3 applicant’s and witness’s written and oral statements . . .
4 , the internal consistency of each such statement, the
5 consistency of such statements with other evidence of
6 record . . . without regard to whether an inconsistency,
7 inaccuracy, or falsehood goes to the heart of the applicant’s
8 claim, or any other relevant factor.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
10 163-64 (2d Cir. 2008). Substantial evidence supports the
11 agency’s determination that Singh was not credible as to his
12 claim that Congress Party members attacked him on two
13 occasions in India on account of his membership in the Akali
14 Dal Mann Party and his fear of similar harm in the future.
15 The agency reasonably relied in part on Singh’s demeanor,
16 noting that his testimony was vague and evasive at times on
17 cross-examination. See 8 U.S.C. § 1158(b)(1)(B)(iii);
18 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005)
19 (recognizing that particular deference is given to the trier
20 of fact’s assessment of demeanor). The demeanor finding is
21 supported by the record, which reflects that Singh testified
22 incoherently about differences between his testimony and his
3
1 father’s affidavit, evasively about obtaining his election
2 card, and inconsistently and vaguely about the whereabouts of
3 his passport.
4 The demeanor finding and overall credibility
5 determination are bolstered by record inconsistencies. See
6 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
7 Cir. 2006). The agency reasonably relied on inconsistent
8 evidence regarding whether Singh returned home after his
9 first attack or went directly to the police station and
10 regarding whether the same attackers perpetrated both
11 attacks. Singh did not provide compelling explanations for
12 these inconsistencies. See Majidi v. Gonzales, 430 F.3d
13 77, 80 (2d Cir. 2005) (“A petitioner must do more than
14 offer a plausible explanation for his inconsistent
15 statements to secure relief; he must demonstrate that a
16 reasonable fact-finder would be compelled to credit his
17 testimony.” (internal quotation marks omitted)).
18 Having questioned Singh’s credibility, the agency
19 reasonably relied further on his failure to rehabilitate his
20 testimony with reliable corroborating evidence. “An
21 applicant’s failure to corroborate his or her testimony may
22 bear on credibility, because the absence of corroboration in
4
1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question.” Biao Yang v.
3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency
4 reasonably declined to credit (1) Singh’s father’s affidavit
5 as it was inconsistent with Singh’s testimony, (2) his
6 neighbor’s affidavit as the author was not available for
7 cross-examination, and (3) his party leader’s letter given
8 his admission that the leader had no first-hand knowledge of
9 the events described therein but rather had learned them from
10 Singh’s father and from reading a copy of Singh’s asylum
11 application. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
12 F.3d 315, 342 (2d Cir. 2006) (holding that determination of
13 the weight of evidence is largely a matter of agency
14 discretion); see also Y.C. v. Holder, 741 F.3d 324, 334 (2d
15 Cir. 2013) (deferring to agency’s decision to afford little
16 weight to relative’s letter from China because it was unsworn
17 and from an interested witness); In re H-L-H- & Z-Y-Z-, 25 I.
18 & N. Dec. 209, 215 (B.I.A. 2010) (finding that unsworn letters
19 from alien’s friends and family were insufficient to provide
20 substantial support for alien’s claims because they were from
21 interested witnesses not subject to cross-examination),
22 overruled on other grounds by Hui Lin Huang v. Holder, 677
5
1 F.3d 130, 133-38 (2d Cir. 2012). The agency did not err in
2 declining to afford weight to Singh’s medical certificate
3 because it was not a contemporaneous document, but was
4 prepared for the asylum hearing. See Xiao Ji Chen, 471 F.3d
5 at 342. The agency also reasonably found unreliable Singh’s
6 election and party membership cards because he testified that
7 he had used the election card to vote in 2011 but the card is
8 dated 2015 and his photograph on the party membership card
9 was stapled and taped onto the card and was missing the stamp
10 that should have lined up with a stamp on the card. See id.11 Given Singh’s demeanor, inconsistent evidence, and lack
12 of reliable corroboration, the agency’s adverse credibility
13 determination is supported by substantial evidence. See
14 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to Singh’s
15 argument, the credibility determination was dispositive of
16 asylum, withholding of removal, and CAT relief because all
17 three claims were based on the same factual predicate. See
18 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
6
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe
7 Clerk of Court
7