Singh v. Lynch ( 2016 )

15-2202
Singh v. Lynch
BIA
Christensen, IJ
A200 239 620
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of September, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GURWINDER SINGH,
14 Petitioner,
15
16 v. 15-2202
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Linda S.
28 Wernery, Assistant Director; Sarah
29 Byrd, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 is
4 DENIED.
5 Petitioner Gurwinder Singh, a native and citizen of India,
6 seeks review of a June 10, 2015, decision of the BIA affirming
7 a December 10, 2014, decision of an Immigration Judge (“IJ”)
8 denying Singh’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Gurwinder Singh, No. A200 239 620 (B.I.A. June 10, 2015),
11 aff’g No. A200 239 620 (Immig. Ct. N.Y. City Dec. 10, 2014).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu
18 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). For
19 asylum applications like Singh’s, governed by the REAL ID Act,
20 the agency may, “[c]onsidering the totality of the
21 circumstances . . . base a credibility determination on”
2
1 inconsistencies in an applicant’s statements and other record
2 evidence “without regard to whether” those inconsistencies go
3 “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. Here,
5 the agency’s adverse credibility determination is supported by
6 substantial evidence: the IJ identified multiple
7 inconsistencies and omissions in Singh’s testimony and
8 documentary evidence.
9 First, Singh provided inconsistent information about his
10 first alleged beating. Singh testified that he went to the
11 hospital after the first beating, but omitted that information
12 from his application. The IJ reasonably relied on this
13 omission, see Xiu Xia Lin, 534 F.3d at 166 n.3, particularly
14 as Singh’s documentary evidence also conflicted with his
15 testimony. Singh testified that he went to the hospital the
16 day after the beating, but the hospital record he submitted
17 reflects that he was admitted the day of the beating. Moreover,
18 though the hospital record indicates that Singh was unconscious
19 when he arrived, Singh testified that he was still conscious.
20 In addition, Singh testified that he went to the police
21 station after that first beating and then to the hospital the
3
1 next day, but his father’s affidavit contradicts that
2 testimony. It reports that Singh’s father took Singh to the
3 hospital first, then went with the village sarpanch to report
4 the beating to the police. Although Singh insisted that he went
5 to the police station after the first attack, neither his
6 father’s nor the sarpanch’s affidavits confirm his testimony.
7 Second, the IJ reasonably relied on inconsistencies
8 regarding the second alleged beating. Both Singh’s asylum
9 application and testimony reflected that, after he reported the
10 second beating, he and his father were summoned back to the
11 police station and the police threatened them with violence if
12 they would not drop the case. However, Singh’s father’s
13 affidavit omitted this return to the police station. See Xiu
14 Xia Lin, 534 F.3d at 166 n.3. Although asked, Singh was unable
15 to explain any of the above inconsistencies. See Majidi v.
16 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
17 do more than offer a plausible explanation for his inconsistent
18 statements . . . he must demonstrate that a reasonable
19 fact-finder would be compelled to credit his testimony.”
20 (emphasis in original; internal quotation marks omitted)).
21 Given the inconsistency findings, the totality of the
4
1 circumstances supports the agency’s adverse credibility
2 determination, which is dispositive of all of Singh’s claims
3 for relief. Xiu Xia Lin, 534 F.3d at 165-66; Paul v. Gonzales,
4 444 F.3d 148, 156-57 (2d Cir. 2006) (holding that an adverse
5 credibility determination can be dispositive of asylum,
6 withholding of removal, and CAT relief if all claims are based
7 on the same factual predicate).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
5