Gurpreet Singh v. Eric Holder, Jr. , 699 F.3d 321 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GURPREET BHABRA SINGH, 
Petitioner,
v.
 No. 11-1609
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: September 21, 2012
Decided: November 5, 2012
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Petition denied by published opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Judge Diaz joined.
COUNSEL
ARGUED: Garish Sarin, LAW OFFICES OF GARISH
SARIN, Los Angeles, California, for Petitioner. Lindsay Cor-
liss, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, William C.
2 SINGH v. HOLDER
Peachey, Assistant Director, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
DUNCAN, Circuit Judge:
Petitioner Gurpreet Bhabra Singh ("Singh") seeks judicial
review of an order of the Board of Immigration Appeals (the
"Board") denying his application for withholding of removal
under both the Immigration and Nationality Act (the "INA")
and under Article III of the Convention Against Torture (the
"CAT"). Singh contends that the Board denied him relief in
part based on an improper adverse credibility determination.
Singh also argues that the errors of an incompetent interpreter
during his immigration proceedings violated his right to due
process. For the reasons explained below, we find no error,
and therefore deny Singh’s petition for review.
I.
A.
Singh, born in 1985 in the Punjab state of India, is a native
and citizen of that country, and a member of the Sikh religion.
He departed his native country at some point in October 2005,
traveling to Mexico on a student visa. In February 2006, he
entered the United States from Mexico. After being served
with a Notice to Appear by the Department of Homeland
Security on November 29, 2007, Singh applied for withhold-
ing of removal under the INA, 8 U.S.C. § 1231(b)(3), and
under the CAT, see 8 C.F.R. § 208.16(c).
In his application and during the immigration proceedings,
Singh explained the circumstances which led to his flight
from India. The following facts are drawn from those narra-
SINGH v. HOLDER 3
tives, and, unless otherwise noted, are undisputed by the gov-
ernment.
Singh’s father, Surinder Singh ("Surinder"), is a wealthy
and influential farmer in the Punjab state where he and his
family live. Sunil Dutti ("Dutti"), a member of the then-ruling
Nationalist Congress party and the mayor of the town where
the Singhs lived, sought Surinder’s political support. Surinder,
however, had professed himself a supporter of the then-
opposition Akali Dal Party.
Singh also claimed allegiance to the Akali Dal Party, which
he described as primarily committed to the care of Sikh reli-
gious shrines and providing assistance to rural farmers.
According to Singh, although Sikhs can and do join different
political parties, the Akali Dal Party is widely considered the
leading Sikh political party. Singh testified that his involve-
ment with the Akali Dal Party consisted of accompanying his
father on campaign and fundraising visits.1
On January 26, 2005, Singh was at home when three mem-
bers of the Congress Party, including one known supporter of
Dutti, accompanied by three police officers, arrived in search
of Surinder. Singh answered the door, and the group then
forced its way into the house. Singh informed them that his
father was not at home, but that they could speak with him
instead. According to Singh, members of the group then
sought to persuade him to convince his family—in particular
his father—to support the Congress party in part by offering
various sorts of benefits. When this attempt at persuasion
proved ineffective, the group resorted to more coercive tac-
tics.
1
Singh testified that he accompanied his father on visits where Surinder
sought to convince people to "vote for our family." J.A. 110. The record
does not indicate, however, whether Singh, Surinder, or any other member
of the family was a candidate for political office.
4 SINGH v. HOLDER
After reminding Singh that the Congress Party was in
power, the group threatened him by telling him they could do
whatever they wanted to him. Singh responded that he would
report any misconduct to higher authorities, and an argument
ensued. At some point the group indicated that they had come
to arrest Surinder. According to Singh, when he protested the
police had no cause to arrest his father and demanded to see
the arrest warrant, the police officers arrested him instead.
The police transported Singh to a nearby police station
where they told Singh he would be held until his father came
to pick him up. The police held Singh for two days. During
that time, they slapped and hit him, and at night, they tied his
arms behind his back and further abused him. The police also
beat him with a police club that broke his arm and rendered
him unconscious. Upon waking from this beating, Singh
noted he had been burned with a cigarette.
On January 28, 2005, Surinder came to the police station to
secure the release of his son. Surinder gave 100,000 Indian
rupees to the police, and they released Singh. According to
Singh, Surinder knew one of the police officers personally,
and thus was able to secure Singh’s release but avoid arrest
himself.
In June 2005, the officers who had arrested Singh in Janu-
ary reappeared looking for him. This time, Surinder was at
home while Singh was not. After the police left, Surinder
advised his son to leave their home in the Punjab state. Singh
then borrowed money from a friend and traveled to Delhi,
where he lived with relatives. He stayed in Delhi from June
until October 2005, at which point he obtained a student visa
to travel to Mexico. Singh claimed that he could not remain
in Delhi because the police were looking for him throughout
the country, and he feared they would file a false case against
him, or worse, "take [him] anywhere and . . . kill [him]." J.A.
138.
SINGH v. HOLDER 5
Upon arrival in Mexico at some point in October or
November 2005, Singh was detained by immigration authori-
ties until the first week of February 2006. Once released,
Singh headed to the United States, crossing the border on
February 20, 2006. After being served with a Notice to
Appear in November 2007, Singh applied for withholding of
removal under the INA and CAT in January 2008.
Singh also recounted an incident that occurred to his father
in August 2007—after Singh had already arrived in the
United States. While the police were detaining Singh in Janu-
ary 2005, Surinder had unsuccessfully sought the intervention
of the Akali Dal Party. In reaction to that party’s failure to
assist, Surinder withdrew his support. According to Singh, the
Akali Dal Party retaliated two years later, in August 2007, by
coming to the Singh family house, beating Surinder, and
breaking one of his legs.
Along with his application, Singh submitted two types of
supporting documentation. First, Singh included a number of
articles and reports attesting to human rights abuses in various
parts of India, including by police in the Punjab state. The
report most pertinent to Singh’s claim is a 2007 British Home
Office Operational Guidance Note on India which describes
the relationship then existing between the Congress and Akali
Dal Parties:
The Akali Dal and the Congress Party are both legal
political parties within India who campaign and par-
ticipate in State and National elections. There is no
evidence to suggest that members of one party fear-
ing ill-treatment or persecution by individual mem-
bers of the other party could not seek protection
from the authorities or relocate internally to escape
a local threat.
J.A. 173-74. Second, Singh submitted affidavits from his fam-
ily members and close family friends, as well as hospital
reports documenting the scope of his injuries.
6 SINGH v. HOLDER
One final fact warrants mention. At some point after Janu-
ary 2005 and before Singh’s immigration hearing, the Akali
Dal Party came to power in the state of Punjab. It appears the
Akali Dal Party remains in power in the Punjab state as part
of a ruling coalition.2
B.
After submitting his application for withholding of removal
and protection under the CAT,3 Singh appeared for a hearing
before an Immigration Judge (the "IJ") on March 13, 2008.
Because Singh’s counsel had previously agreed to conduct the
hearing in English, no interpreter was present. Shortly into
that hearing, however, the IJ determined Singh’s English was
inadequate to comprehend fully what was transpiring. The IJ
therefore continued the hearing to a later date, explaining to
Singh that "it is very important that the Court hears your
application and it’s very important that I understand your
story." J.A. 80.
When the hearing recommenced on November 14, 2008, a
Punjabi interpreter was in the courtroom. The IJ explained to
Singh the procedures for communicating through and with an
interpreter, including the need to inform the interpreter if
Singh did not understand. Singh confirmed that he understood
the procedures, and agreed to follow them.
2
See, e.g., Akali Dal-BJP Sweep Punjab Civic Polls, The Times of India
(Jun. 10, 2012, 9:55 PM), http://articles.timesofindia.indiatimes.com/
2012-06-10/india/32155676_1_akali-dal-bjp-akali-dal-bjp-akali-bjp-
alliance (last visited Oct. 10, 2012).
3
Singh did not seek asylum because he had been in the United States for
more than a year at the time of his application. See 8 U.S.C.
§ 1158(a)(2)(B) (alien cannot seek asylum "unless the alien demonstrates
by clear and convincing evidence that the application has been filed within
1 year after the date of the alien’s arrival in the United States"). Singh con-
cedes that an asylum application is time-barred.
SINGH v. HOLDER 7
At one point early in the November hearing, Singh’s coun-
sel was questioning Singh about founding figures in the Sikh
religion. The IJ asked Singh’s counsel to have the names
spelled for the record, and counsel suggested, given his inabil-
ity to speak Punjabi, that the interpreter was in a better posi-
tion to spell the names properly. The interpreter responded
that her lack of familiarity with the Sikh religion rendered her
unable to spell the names correctly: "I can understand Punjabi
and speak Punjabi, but the way that the names are you can
spell them differently." J.A. 108. The IJ then directed Singh’s
counsel to move on. Singh proceeded to testify concerning the
merits of his claims.
On May 6, 2009, the IJ entered a written memorandum and
order denying Singh’s application for withholding of removal
under both the INA and the CAT, and ordering Singh
removed from the United States to India. Applying the REAL
ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (the
"REAL ID Act"), the IJ found Singh’s testimony lacked credi-
bility because it failed to offer a plausible explanation for why
his father was able to secure his release from prison without
being himself arrested and failed to provide a coherent expla-
nation of Singh’s own political views. The IJ also concluded
that Singh had not provided adequate corroboration for his
claims. Specifically, the IJ took issue with (1) Singh’s expla-
nation that his sister, who lives in the United States, could not
testify or submit a statement on his behalf; (2) Singh’s inabil-
ity to demonstrate that a legal or administrative action against
Punjabi police would necessarily have been ineffective, given
articles he submitted suggesting otherwise; and (3) Singh’s
insufficient explanation of an altered affidavit submitted by
one of Singh’s family friends. On this last point, the IJ did not
credit the affidavit because Singh had not explained why a
date had been altered from 2005 to 2007.
Having made an adverse credibility determination, the IJ
then concluded Singh failed to establish a clear probability of
persecution on return to India on the basis of his political
8 SINGH v. HOLDER
opinion and thus was not entitled to withholding of removal
under the INA. The IJ next concluded that because Singh had
failed to demonstrate it was more likely than not he would be
tortured upon return to India, Singh was also ineligible for
withholding of removal under the CAT.
The Board affirmed the IJ’s decision. In addition to uphold-
ing the IJ’s denial of relief under the INA and the CAT, the
Board rejected Singh’s contention that the incompetence of
the interpreter during his hearing before the IJ amounted to a
violation of his right to due process. The Board based this lat-
ter conclusion on Singh’s failure to raise any concern with the
interpreter during the hearing and on the fact that "untrans-
lated" portions of testimony had been left untranslated for
legitimate reasons. Accordingly, the Board dismissed Singh’s
petition. This appeal followed.
II.
Singh now presses three arguments on appeal. Singh first
contends that the IJ’s adverse credibility determination was
unfounded, and that he does qualify for withholding of
removal under the INA. Second, Singh asserts he is also enti-
tled to withholding of removal under the CAT because his
history of having been tortured by the police, when viewed in
light of the human rights practices in the state of Punjab, dem-
onstrates it is more likely than not he would be tortured if
forced to return to India. Finally, Singh again argues that an
incompetent interpreter providing inadequate translation vio-
lated his right to due process. We address each issue in turn.
A.
To qualify for withholding of removal under the INA, an
applicant must establish that if sent back to the country of
removal, his "life or freedom would be threatened in that
country because of [his] race, religion, nationality, member-
ship in a particular social group, or political opinion." 8
SINGH v. HOLDER 9
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(1). An appli-
cant for withholding must therefore show a "clear probability
of persecution," and link that probability of persecution to one
of the five grounds enumerated in the statute. INS v. Stevic,
467 U.S. 407, 413 (1984). The applicant bears the burden of
establishing the credibility of the facts supporting his applica-
tion, and, if so requested by the trier of fact, providing evi-
dence that corroborates those facts. 8 U.S.C. § 1231(b)(3)(C)
(referring to 8 U.S.C. § 1158(b)(1)(B)(ii) and (iii)). Thus, in
reaching a decision on whether an applicant is entitled to
withholding of removal under the INA, a trier of fact must
determine the credibility of testimony and supporting docu-
mentation.
Singh first challenges the IJ’s finding, upheld by the Board,
that he does not warrant withholding of removal under the
INA on the basis of his political opinion.4 When, as here, the
Board and an IJ issue decisions in a case, we review both on
appeal. Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir.
2009) (citation omitted). Those decisions should be upheld
unless they are "manifestly contrary to the law and an abuse
of discretion." 8 U.S.C. § 1252(b)(4)(D); Zelaya v. Holder,
668 F.3d 159, 165 (4th Cir. 2012). The agency’s findings of
fact are considered "conclusive unless the evidence was such
that any reasonable adjudicator would have been compelled to
a contrary view." Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.
2011) (citation omitted); 8 U.S.C. § 1252(b)(4)(B). "Agency
findings with respect to an applicant’s credibility are likewise
entitled to judicial deference if such findings are supported by
substantial evidence." Dankam v. Gonzales, 495 F.3d 113,
119 (4th Cir. 2007).
4
Although Singh’s brief refers to his religion and his membership in a
particular social group that includes his family, Appellant’s Br. at 32-33,
Singh’s only arguments for withholding of removal under the INA empha-
size his political opinion or the political opinion allegedly imputed to him,
see id. at 33-35.
10 SINGH v. HOLDER
In particular, Singh claims that the IJ and the Board misap-
plied the credibility provision in the REAL ID Act, and that
such misapplication led to an erroneous decision to deny him
relief under the INA. In response, the government argues that
the record supports both the adverse credibility determination
and the ultimate decision to deny Singh withholding of
removal. Before addressing whether the record compels us to
conclude that Singh is entitled to withholding of removal
under the INA, we consider the effect of the REAL ID Act on
credibility and corroboration requirements in the immigration
context.
1.
Passed on May 11, 2005 and applicable to all asylum or
withholding of removal applications filed under the INA after
that date, the REAL ID Act amended the INA’s provisions on
credibility and corroboration. As to credibility determinations,
the REAL ID Act provides:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or respon-
siveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s
written and oral statements (whenever made and
whether or not under oath, and considering the cir-
cumstances under which the statements were made),
the internal consistency of each such statement, the
consistency of such statements with other evidence
of record (including the reports of the Department of
State on country conditions), 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. There is no presumption of
credibility, however, if no adverse credibility deter-
SINGH v. HOLDER 11
mination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on
appeal.
REAL ID Act § 101(a)(3), codified at 8 U.S.C.
§ 1158(b)(1)(B)(iii) (emphasis added). Before the enactment
of this provision, an inconsistency or other inaccuracy justi-
fied an adverse credibility finding only when that inconsis-
tency went to the heart of an applicant’s claim. See Djadjou
v. Holder, 662 F.3d 265, 274 (4th Cir. 2011) ("Minor omis-
sions, inconsistencies, and contradictions that do not go to the
heart of the applicant’s claims . . . do not necessarily support
an adverse credibility determination."). As a number of our
sister circuits have now recognized, the REAL ID Act’s credi-
bility provision effectively overrules the previous "heart of
the claim" standard. See Shrestha v. Holder, 590 F.3d 1034,
1043 (9th Cir. 2010) ("Inconsistencies no longer need to ‘go
to the heart’ of the petitioner’s claim to form the basis of an
adverse credibility determination."); El-Moussa v. Holder,
569 F.3d 250, 256 (6th Cir. 2009); Wang v. Holder, 569 F.3d
531, 537-38 (5th Cir. 2009) ("Congress’s express rejection of
the prior ‘heart of the applicant’s claim’ standard demon-
strates an intent to provide more discretion to the IJ in deter-
mining credibility of witnesses. . . ."); Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); Lin v. Mukasey, 521 F.3d 22,
26 (1st Cir. 2008); Chen v. U.S. Attorney Gen., 463 F.3d
1228, 1233 (11th Cir. 2006); Mitondo v. Mukasey, 523 F.3d
784, 787-88 (7th Cir. 2006) ("This statute abrogates decisions
that focus on ‘whether an inconsistency, inaccuracy, or false-
hood goes to the heart of the applicant’s claim.’"). We now
join those courts in recognizing the REAL ID Act’s abroga-
tion of our former standard for credibility assessments under
the INA.5
5
A number of our unpublished per curiam decisions have applied the
REAL ID Act’s credibility provision. See, e.g., Abebe v. Holder, 468 F.
App’x 227, 228 (4th Cir. 2012); Zong Ming Zhu v. Holder, 462 F. App’x
319, 321 (4th Cir. 2012); Yi Dong Lin v. Holder, 444 F. App’x 652, 653
12 SINGH v. HOLDER
It is important to delineate what the REAL ID Act credibil-
ity provision changes and what it leaves in place. As the pro-
vision’s language makes evident, an IJ’s adverse credibility
determination need no longer rest solely on those matters fun-
damental to an alien’s claim for relief under the INA. Instead,
the REAL ID Act’s credibility provision "is intended to allow
Immigration Judges to follow a ‘commonsense’ approach
while ‘taking into consideration the individual circumstances
of the specific witness and/or applicant.’" In re J-Y-C, 24 I.
& N. Dec. 260, 262 (BIA 2007) (quoting H.R. Rep. 109-72,
at 167) (internal alterations omitted). This more flexible
approach to credibility assessments, however, does not alter
the underlying methodological requirement that an Immigra-
tion Judge provide "specific, cogent reason[s]" for making an
adverse credibility determination in a given case. See Camara
v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) (quoting
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989)); see also
Shrestha, 590 F.3d at 1042 (noting the IJ’s requirement to
provide specific, cogent reasons for an adverse credibility
determination "is not altered by the REAL ID Act").
In addition to altering the INA’s credibility provision, the
REAL ID Act also amended the INA’s requirement for cor-
roborating evidence. Under the amendment, when a trier of
fact is not fully satisfied with the credibility of an applicant’s
testimony standing alone, the trier of fact may require the
applicant to provide corroborating evidence "unless the appli-
cant does not have the evidence and cannot reasonably obtain
the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii);6 see also J-Y-C,
(4th Cir. 2011); Ngwa v. Holder, 441 F. App’x 203, 204-05 (4th Cir.
2011); Jie Jie Lin v. Holder, 436 F. App’x 182, 184 (4th Cir. 2011); Ling
Yu v. Holder, 433 F. App’x 174, 175 (4th Cir. 2011); Lewete v. Holder,
429 F. App’x 320, 321 (4th Cir. 2011); Acharya v. Holder, 424 F. App’x
196, 197 (4th Cir. 2011).
6
Although the statute refers specifically to an asylum applicant, see 8
U.S.C. § 1158(b)(1)(B)(ii) (referring to whether applicant has demon-
strated "specific facts sufficient to demonstrate that the applicant is a refu-
gee") (emphasis added), a cross-reference at 8 U.S.C. § 1231(b)(3)(C)
applies the REAL ID Act’s credibility and corroboration provisions to an
alien seeking withholding of removal under the INA.
SINGH v. HOLDER 13
24 I. & N. Dec. at 263 ("The amendments to the [REAL ID]
Act continue to allow an alien to establish eligibility for asy-
lum through credible testimony alone, but they also make
clear that where a trier of fact requires corroboration, the
applicant bears the burden to provide corroborative evidence,
or a compelling explanation for its absence." (citation omit-
ted)).7 A failure to either provide corroborative evidence fol-
lowing a request by a trier of fact or explain its absence
further buttresses an adverse credibility determination.
2.
Having reviewed the changes wrought by the REAL ID Act
to the INA’s credibility and corroboration provisions, we now
assess the adverse credibility determination in this case in
light of those amendments. After considering the totality of
the circumstances and all relevant factors implicated in
Singh’s claim, the IJ identified three grounds for finding
Singh’s testimony incredible. First, Singh’s testimony about
his father coming to the police station to secure Singh’s
release lacked "inherent plausibility." 8 U.S.C.
§ 1158(b)(1)(B)(iii). In particular, the IJ found it implausible
that an individual wanted for arrest and whose son was
arrested in his stead would be able to appear at the police sta-
tion—and then negotiate with the police regarding his son’s
detention before paying for his son’s release—without being
himself arrested. Although Singh offers a "mixed-motive"
theory on appeal—that the police were simultaneously seek-
ing to persecute Singh and his father for their support of the
7
The REAL ID Act’s amendment of the INA’s corroboration require-
ment sought to "codify the [Board]’s corroboration standards." J-Y-C-, 24
I. & N. Dec. at 263 (citation and internal alteration omitted). Unlike the
amendment to the credibility provision, however, this amendment effects
no change to our existing precedent. See Marynenka v. Holder, 592 F.3d
594, 601 (4th Cir. 2010) ("[E]ven for credible testimony, corroboration
may be required when it is reasonable to expect such proof and there is
no reasonable explanation for its absence.") (quoting Lin-Jian v. Gonzales,
489 F.3d 182, 191-92 (4th Cir. 2007)).
14 SINGH v. HOLDER
Akali Dal Party and to extort money from them—he did not
articulate this explanation before the IJ or the Board. The IJ
was therefore entitled to find that Singh’s testimony lacked
credibility on the record before him.
Second, the IJ reasonably found Singh to be nonresponsive
at various points in his testimony. On one occasion, for exam-
ple, counsel for the government sought at least twice to ques-
tion Singh regarding the political opinion he held and for
which he feared persecution in the future. In response, Singh
first suggested he held views distinct from those advocated by
any political parties. When pressed further, Singh began dis-
cussing his father’s views and efforts by political parties to
take his father’s land. As the IJ noted, neither answer was respon-
sive.8
Finally, Singh’s inability to state with any detail his politi-
cal opinion provides a third ground for finding his testimony
wanting in credibility. Singh made clear not only that his
views differed from those espoused by the existing political
parties in the state of Punjab, but also that he now does not
support any party. While support of a party is no sine qua non
for holding a political opinion, Singh failed to articulate any
political views whatsoever. At best, he identified his views
with those of his father, Surinder. But Singh provided no
8
To the extent Singh might ascribe his nonresponsiveness in the face of
questions about his political views to problems with the interpreter—an
argument not specifically advanced in his brief or at oral argument—we
note that the transcript for the relevant part of the immigration hearing
contains no untranslated portions or "indiscernible" notations. See J.A.
142-43. Certainly an applicant’s nonresponsiveness cannot support an
adverse credibility determination when caused by an incompetent inter-
preter. See Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000); Ama-
dou v. INS, 226 F.3d 724, 728 (6th Cir. 2000). Such is not the case here,
where after making "a sincere effort to understand [Singh’s] testimony,
and . . . provid[ing] him with numerous opportunities to elaborate and to
clarify it," Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002), the IJ carefully
based his adverse credibility determination on those moments of non-
responsiveness attributable solely to Singh.
SINGH v. HOLDER 15
explanation of Surinder’s current political opinion, if any.
Thus, taken together, these findings—the inherent implausi-
bility of Singh’s account of his father’s having secured
Singh’s release from prison, Singh’s nonresponsiveness while
testifying, and Singh’s failure to identify a political view
likely to subject him to persecution—constitute specific and
cogent reasons warranting an adverse credibility determina-
tion under the REAL ID Act’s amendments to the INA’s cred-
ibility provision.9
Further bolstering the IJ’s adverse credibility determination
was Singh’s failure to provide adequate corroborating evi-
dence when so requested. The IJ’s request for corroborating
evidence was reasonable in light of his credibility concerns
with Singh’s testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii)
("The testimony of the applicant may be sufficient to sustain
the applicant’s burden without corroboration, but only if the
applicant satisfies the trier of fact that the applicant’s testi-
mony is credible. . . ."). In response, however, Singh failed to
adduce evidence to corroborate his testimony. Instead, Singh
produced testimonials from family members and close family
friends, which properly troubled the IJ. Noting our concern
that affidavits submitted by family members and close friends
lack the hallmarks of independent evidence, see Gandziami-
Mickhou v. Gonzales, 445 F.3d 351, 358-59 (4th Cir. 2006)
(holding that a "notice of escape" from a prison, a member-
ship card for a political organization, an affidavit from a polit-
ical party leader, and State Department reports describing
persecution of members of a political group, unlike "affidavits
from friends and family," constitute independent corroborat-
ing evidence of political persecution), the IJ viewed Singh’s
testimonials with considerable skepticism.10 Such skepticism
9
Given that Singh’s lack of credibility extends to his putative political
opinion, the evidence here arguably satisfies our pre-REAL ID Act "heart
of the claim" standard as well.
10
Singh did submit one affidavit from an individual identifying himself
as an active member of the Akali Dal Party. See J.A. 211-13. While
16 SINGH v. HOLDER
is justifiably heightened where, as here, one of the affidavits
had been altered by hand with no explanation provided.
Singh exacerbated his credibility problems by failing to
explain why he did not or could not reasonably obtain addi-
tional evidence to corroborate his testimony. The IJ noted the
lack of evidence from Singh’s relatives in Delhi, with whom
he claimed to have resided from June 2005 until he traveled
to Mexico in October 2005, and was particularly troubled by
Singh’s explanation for the absence of any corroborating evi-
dence from his sister who lives in the United States.11 Singh
reported, without elaboration, that "his sister could not testify
or provide a statement because she is no longer a part of the
family and because he does not want to involve her in his
problems." J.A. 340. Although we have faulted an Immigra-
tion Judge for expecting the corroborative testimony of an
applicant’s friend when that friend had suffered a brain con-
cussion and had been advised to refrain from any activity
largely corroborating Singh’s account, the affidavit also raises new credi-
bility questions. The affiant claims he assisted Surinder in bribing the
police to secure Singh’s release, and that Surinder subsequently stopped
supporting the Akali Dal Party to avoid any further confrontations with the
police. This account differs from Singh’s claim that his father’s support of
the Akali Dal Party ceased because the party failed to assist their family
while Singh was detained.
11
Although not required to credit fully affidavits from family members,
see Gandziami-Mickhou, 445 F.3d at 358-59, in this case, the IJ nonethe-
less rightly expected Singh either to produce such evidence or explain why
he could not reasonably obtain it, see 8 U.S.C. § 1158(b)(1)(B)(ii). Our
holding in Gandziami-Mickhou neither requires an IJ to discredit any and
all affidavits from close friends and family, see, e.g., Tassi, 660 F.3d at
722-23 (faulting IJ for not crediting affidavit of applicant’s mother-in-
law), nor does it permit an IJ to solicit such evidence only then to fault an
applicant because the solicited evidence is not adequately independent.
Here, the IJ provided specific, cogent reasons for seeking corroborating
evidence from Singh’s relatives in Delhi and his sister, and did not rely
solely on the absence of this corroborating evidence to support his adverse
credibility determination.
SINGH v. HOLDER 17
which might upset her,12 see Marynenka v. Holder, 592 F.3d
594, 598-99 (4th Cir. 2010), the IJ’s expectation of some form
of corroboration from Singh’s sister—or some explanation
why such evidence could not reasonably be obtained—falls
well within his discretion as the trier of fact under the REAL
ID Act’s corroboration provision. See § 1158(b)(1)(B)(ii).
In sum, the IJ provided specific and cogent reasons explain-
ing his adverse credibility determination, and found further
support for that determination in Singh’s inability to sustain
his burden to provide corroborating evidence of his statement
and testimony. We conclude that substantial evidence in the
record supports these reasons under the REAL ID Act’s "to-
tality of the circumstances" standard, and therefore uphold the
IJ’s and the Board’s adverse credibility determination.13
12
Because the friend would have had to testify about a gang rape she
and the applicant suffered at the hands of the Belarusian police, there is
little doubt such testimony would have upset her. See Marynenka, 592
F.3d at 598.
13
Given the extent of Singh’s credibility and corroboration problems
here, we have no need to reach an issue that has understandably troubled
our sister circuits, namely, how small an inconsistency is sufficient to jus-
tify an adverse credibility finding. Compare Castaneda-Castillo v. Gon-
zales, 488 F.3d 17, 23 n.6 (1st Cir. 2007) (en banc) (interpreting the REAL
ID Act to revive the falsus in uno, falsus in omnibus approach to credibil-
ity determinations) with Kadia v. Gonzales, 501 F.3d 817, 822-23 (7th Cir.
2007) (Posner, J.) (dubious of this view because an IJ "cannot discredit
otherwise persuasive testimony because of a misspelling in the asylum
application"); see also Scott Rempell, Credibility Assessments and the
REAL ID Act’s Amendments to Immigration Law, 44 Tex. Int’l L.J. 185,
231 (2008) ("[O]n a sliding scale of inconsistencies between simple mis-
spellings and inconsistencies reasonably indicative of untruthfulness are
those that will require further resolution on the basis of their relation to the
inference of untruthfulness as interpreted in accordance with the deferen-
tial standard of review and applicable burden of proof."). Interesting as
this question is, however, Singh’s credibility problems are not of so small
a quantum as to warrant discussion of it in this case. Cf. Lin, 521 F.3d at
27 n.3 (flagging issue but not addressing it because "we cannot say it
would be irrational to consider the inconsistencies in this case relevant to
[the applicant]’s truthfulness").
18 SINGH v. HOLDER
3.
Having found substantial evidence supporting the Board’s
adverse credibility determination, we now consider whether,
in light of that determination, Singh is nonetheless entitled to
withholding of removal under the INA. To prevail on his
withholding of removal claim, Singh must establish "a clear
probability of persecution" on the basis of race, religion,
nationality, political opinion, or membership in a particular
social group. Stevic, 467 U.S. at 413. This standard imposes
a more stringent burden than for asylum.14 Id. at 429-30. Per-
secution takes the form of "threats to life, confinement, tor-
ture, and economic restrictions so severe that they constitute
a threat to life or freedom." Fatin v. INS, 12 F.3d 1233, 1240
(3d Cir. 1993) (citing Matter of Acosta, 19 I. & N. Dec. 211,
222 (BIA 1985)) (overruled in part by Matter of Mogharrabi,
19 I. & N. Dec. 439 (BIA 1987)); see also Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (explaining that persecution,
which must "rise above the level of mere harassment," is "an
extreme concept that does not include every sort of treatment
that our society regards as offensive" (citations omitted)).
Where an applicant establishes past persecution, he is entitled
to a rebuttable presumption that his "life or freedom would be
threatened in the future in the country of removal on the basis
of the original claim." 8 C.F.R. § 1208.16(b)(1)(i).
At the outset, we observe that the adverse credibility deter-
mination deals a fatal blow to Singh’s withholding of removal
claim under the INA. Simply put, because Singh has failed to
demonstrate that he holds a political opinion, let alone one
that would serve as the basis for any future persecution if
returned to India, he cannot establish a nexus to a statutorily
protected ground. Moreover, his lack of credibility renders
14
To qualify for asylum as a refugee, an applicant must demonstrate
"persecution or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(42)(A).
SINGH v. HOLDER 19
unavailable a theory of relief under the INA based on past
persecution. See Djadjou, 662 F.3d at 273-74 ("The existence
of only a few . . . inconsistencies, omissions, or contradictions
can be sufficient for the agency to make an adverse credibility
determination as to the applicant’s entire testimony regarding
past persecution.")
Even had Singh been found credible, however, his claim
for relief under the INA still falls short for two reasons. First,
Singh’s core claim of persecution stems from mistreatment at
the hands of the Congress Party and those police officers sup-
porting it. Before he fled from the state of Punjab to Delhi in
June 2005, Singh identified himself as a supporter of the
Akali Dal Party. Now, however, the Akali Dal Party is in
power. Although Singh no longer supports the Akali Dal
Party, there is no indication either that the Congress Party and
its supporters are in a position to harass Singh further through
collaboration with the police or that the Akali Dal Party
would target Singh for persecution.
On appeal, Singh contends that his father’s lack of support
for the Akali Dal Party, which Singh contends led to an attack
by the party on his father in August 2007, should be imputed
to him. Appellant’s Br. at 34-36. This contention suffers from
a number of flaws. Nothing in the record indicates that mem-
bers of the Akali Dal Party have imputed or would impute
Surinder’s lack of support for the party to Singh. Moreover,
Singh has pointed to no other family member—which
includes a younger brother living at home—to whom Sur-
inder’s political views have been imputed. Finally, even
assuming attribution of Surinder’s political opposition to the
Akali Dal Party to Singh, Singh does not explain how the sin-
gle violent act against his father in August 2007 presages per-
secution against Singh (or his father) in 2012 and beyond.
Indeed, the record discloses no acts of violence or reprisals
against Surinder since August 2007, and if he is able to reside
in his home without suffering persecution at present, it is dif-
ficult to understand why Singh could not do so as well.
20 SINGH v. HOLDER
The second shortcoming in Singh’s petition for relief under
the INA is his failure to demonstrate that he could not relocate
safely to some part of India outside the state of Punjab. An
applicant for withholding must demonstrate either that his
well-founded fear of persecution extends country-wide or that
it would be unreasonable to expect him to seek refuge in
another part of the country. See Matter of R-, 20 I. & N. Dec.
621, 626-27 (BIA 1992). Here, Singh moved to Delhi in June
2005, and apparently lived there without incident until Octo-
ber 2005, when he left for Mexico. Although Singh claimed
police were looking for him all over India, no evidence in the
record supported this claim, and the IJ did not credit it. More-
over, nothing in the record suggests it would be unreasonable
for Singh to continue living in Delhi.15 Thus, because substan-
tial evidence supports Singh’s failure to establish a clear prob-
ability of persecution throughout India, the Board’s
conclusion that he was not entitled to withholding of removal
under the INA is not "manifestly contrary to the law and an
abuse of discretion." 8 U.S.C. § 1252(b)(4)(D).
B.
We turn next to Singh’s claim that he is entitled to with-
holding of removal under the CAT. To prevail on his CAT
claim, Singh must demonstrate "it is more likely than not that
he . . . would be tortured if removed" to India. 8 C.F.R.
§ 1208.16(c)(2). No nexus to a statutory ground—race, reli-
gion, nationality, political opinion, or membership in a partic-
ular social group—is required, and an adverse credibility
finding with respect to a withholding claim under the INA is
not itself sufficient to defeat a withholding claim under the
CAT. Camara, 378 F.3d at 371. To constitute torture within
the meaning of the CAT, the harm must be "inflicted by or at
15
The 2007 British Home Office Operational Guidance Note on India
Singh submitted with his application indicated that those fearing persecu-
tion on political grounds in the state of Punjab could "relocate internally
to escape a local threat." J.A. 173-74.
SINGH v. HOLDER 21
the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity."
8 C.F.R. § 1208.18(a)(1). Factors properly considered when
determining whether an individual is more likely than not to
face torture if returned to the country of removal are evidence
of past torture, whether the individual could relocate to
another part of the country where she is not likely to be tor-
tured, evidence of human rights violations in the country of
removal, and any other relevant country-specific information.
8 C.F.R. § 1208.16(c)(3).
Focusing on his CAT claim at oral argument, Singh con-
tends that the IJ and Board erred by (1) ignoring the torture
he suffered at the hands of the police; (2) failing to account
for the objective evidence of widespread human rights abuses
as described in the documentation he submitted; and (3) "al-
low[ing] the taint of the earlier adverse credibility determina-
tion to bleed through into their consideration" of Singh’s CAT
claim. Appellant Br. at 39. The government disagrees, con-
tending the IJ and the Board undertook the proper analysis
and had ample support in the record for denying Singh’s peti-
tion for CAT relief. Because substantial evidence supports the
conclusion that Singh is not more likely than not to face tor-
ture if removed to India, we conclude the IJ and the Board did
not err in finding Singh ineligible for withholding of removal
under CAT.
The IJ and the Board gave fair consideration to Singh’s first
two arguments, and based their rejection of those arguments
on substantial evidence. Considering Singh’s past mistreat-
ment alongside objective documentation describing human
rights practices throughout India, the IJ acknowledged that
"significant abuses do occur," but ultimately concluded that
"the mere existence of a pattern of human rights violations in
a particular country does not constitute a sufficient ground for
finding that a particular person would more likely than not be
tortured." J.A. 344. Singh never explains why this conclusion
is flawed, and our review of the documentary evidence Singh
22 SINGH v. HOLDER
submitted reaches the same result.16 Moreover, the IJ’s find-
ing—never disputed by Singh—that Singh could have relo-
cated safely to another part of India to avoid torture further
reinforces the conclusion below. See 8 C.F.R.
§ 1208.16(c)(3)(ii) (permitting consideration of "[e]vidence
that the applicant could relocate to a part of the country of
removal where he or she is not likely to be tortured").
Singh’s third argument—that the adverse credibility deter-
mination with respect to his INA claim improperly infected
the IJ’s and Board’s CAT analysis—ignores the careful dis-
tinction made below. Although the Board observed that Singh
"seeks to predicate his claim for both [relief under the INA
and the CAT] on the same set of historical facts," it nonethe-
less recognized that an adverse credibility determination
under the INA cannot itself defeat a CAT claim. J.A. 402; see
also Camara, 378 F.3d at 371. The Board then based its con-
clusion that Singh was not likely to be tortured on a rationale
akin to the IJ’s theory that Singh could not establish an indi-
vidualized risk of torture. The fact that Singh cannot articulate
a basis for his past mistreatment is not fatal to his CAT claim,
but it does present a challenge to a showing that he is more
likely than not to be tortured in the future.17
C.
We turn finally to Singh’s claim that an incompetent inter-
preter violated his Constitutional right to due process. We
review due process claims alleging procedural failings in the
16
The country reports in the record identify widespread corruption
throughout India, including in the state of Punjab, but do not present evi-
dence tending to show Singh would more likely than not be tortured.
17
We note the Board ultimately found that Singh had failed to show a
"clear probability" of torture. J.A. 402. To the extent this standard is
higher than the "more likely than not" standard used in the regulations, the
Board erred. Singh does not, however, make this argument. Nonetheless,
we conclude that the error is harmless, as Singh cannot satisfy the "more
likely than not" standard.
SINGH v. HOLDER 23
immigration context de novo. Rusu 296 F.3d at 320. To pre-
vail on this claim, Singh must establish a violation and show
prejudice. Id. at 320-21. To establish a violation, he must
show he was not "accorded an opportunity to be heard at a
meaningful time and in a meaningful manner," meaning he
did not "receive a full and fair hearing on [his] claims." Id. at
321-22. "And we may only find prejudice ‘when the rights of
an alien have been transgressed in such a way as is likely to
impact the results of the proceedings.’" Id. at 320-21 (citing
Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000) (internal
alterations omitted)). We conclude that Singh’s claim fails
because he cannot establish either a violation or prejudice.
The core argument in Singh’s opening brief in support of
his due process claim—that the interpreter stated in open
court that she could not speak Punjabi—is either an attempt
to deceive the court or an egregious error.18 The transcript
makes clear that Singh’s counsel—and not the interpret-
er—stated he could not speak Punjabi. By contrast, the inter-
preter stated she could both understand and speak Punjabi.
More broadly, we observe that the IJ took specific steps to
make sure an interpreter was provided, and that Singh under-
stood the interpreter. See J.A. 75-76 (IJ identifying language
problem during initial removal hearing); id. at 80 (IJ telling
Singh that although Singh understood and could speak some
18
Although Singh did not admit the error at oral argument, he did not
press this point. He did, however, both in his reply brief and through coun-
sel at oral argument raise another troubling attack on the interpreter,
namely, that she let questions of religion interfere with her ability to inter-
pret competently. See Appellant’s Reply Br. at 2. This argument ignores
the context in which the question of religion arose. When Singh’s own
counsel was questioning him regarding the founders of the Sikh religion,
the IJ asked the counsel to spell the names of the figures Singh had named.
When Singh’s counsel sought to defer to the interpreter’s ability to spell
the names in English, the interpreter, by way of explaining her inability
to spell names of figures with which she was unfamiliar, noted that she
was not an adherent of the Sikh religion. Viewed in this context, the inter-
preter’s discussion of religion raises no concerns.
24 SINGH v. HOLDER
English, "it is very important that the Court hears your appli-
cation and it’s very important that I understand your story");
id. at 97 (IJ noting use of simultaneous interpreter at contin-
ued removal proceeding); id. at 105-06 (IJ informing Singh of
procedures for communicating with and through interpreter).
Although Singh identifies some areas where he believes the
interpretation was inadequate, nothing in the record suggests
such errors (if they occurred) denied Singh a full and fair
hearing. As the Board noted, many of the untranslated por-
tions of the transcript appear to have been left untranslated for
legitimate reasons, including that Singh had started answering
a question before the interpreter had completed her interpreta-
tion. Singh’s brief exhaustively catalogues the various points
where "indiscernible" appears in the transcript, but never
explains—nor is it apparent—why these occasional ellipses
taint the entire proceeding with unfairness. Further vitiating
Singh’s argument that the proceeding was not full and fair is
the fact Singh appears to have more than a basic grasp of
English.
Even assuming there were times the interpreter’s work was
less than perfect, and that such imperfection violates Singh’s
right to a full and fair hearing, Singh still cannot establish that
he was prejudiced by such a violation. As the government
notes, Singh "fails to identify a single instance in which the
omitted words changed or obscured the general meaning of
his testimony." Appellee’s Br. at 35. In his reply brief, Singh
makes the broad claim that "an incorrect or incomplete
translation is the functional equivalent of no translation."
Reply Br. at 1.19 He also criticizes the absence of a bilingual
19
This pithy formulation comes from Perez-Lastor, 208 F.3d at 778.
That court identified three types of evidence which tend to prove a transla-
tion was incompetent: (1) direct evidence of incorrectly translated words;
(2) unresponsive answers by the witness, which provide circumstantial
evidence of translation problems; and (3) a witness’s expression of diffi-
culty understanding what is said. Id. at 778. At most, Singh can point to
his unresponsive answers—which may or may not have anything to do
with the interpreter.
SINGH v. HOLDER 25
transcript.20 Id. at 2-3. But Singh still fails to explain in what
way the supposedly inadequate work of the interpreter trans-
gressed his rights "in such a way as is likely to impact the
results of the proceedings." Rusu, 296 F.3d at 320-21. It is on
this obstacle Singh’s due process claim ultimately founders.
III.
For the foregoing reasons, Singh’s petition for review is
DENIED.
20
At oral argument, the government asserted that Singh had failed to
exhaust this issue before the Board below. We need not determine, how-
ever, whether Singh properly raised the quality of the transcripts below
because we conclude he cannot demonstrate prejudice in any event.