Singh v. Garland ( 2021 )

Case: 20-60055 Document: 00515914027 Page: 1 Date Filed: 06/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2021
No. 20-60055
Summary Calendar Lyle W. Cayce
Clerk
Harpreet Singh,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 912 661
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Harpreet Singh, a native and citizen of India, challenges the Board of
Immigration Appeals’ (BIA) dismissal of his appeal from an Immigration
Judge’s (IJ) order denying his application for: asylum; withholding of
removal; and relief under the Convention Against Torture (CAT). Singh
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60055 Document: 00515914027 Page: 2 Date Filed: 06/24/2021
No. 20-60055
contends: the IJ’s adverse credibility determination was not based on the
totality of circumstances; the IJ and BIA erred in denying asylum by failing
to separate Singh’s testimony of past, from his fear of future, persecution;
and the IJ and BIA ignored evidence of India’s country conditions in denying
CAT relief. His claims fail.
In considering the BIA’s decision (and the IJ’s decision, to the extent
it influenced the BIA), our court reviews legal conclusions de novo and factual
findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511,
517–18 (5th Cir. 2012). Under the substantial-evidence standard, “petitioner
has the burden of showing that the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion”. Id. at 518 (internal
quotation marks and citation omitted).
An adverse credibility determination is a factual finding. Singh v.
Sessions, 880 F.3d 220, 225 (5th Cir. 2018). In that regard, “if the IJ’s
credibility determinations are supported by the record, they will be
affirmed”. Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). In making an
adverse credibility determination, the IJ and the BIA “may rely on any
inconsistency or omission . . . as long as the totality of the circumstances
establishes that an asylum applicant is not credible”. Id. at 538 (internal
quotation marks and citation omitted) (emphasis in original).
The record does not compel the conclusion that Singh was credible.
See Chun v. I.N.S., 40 F.3d 76, 79 (5th Cir. 1994). Both the IJ and the BIA
identified several inconsistencies between Singh’s testimony and the
documentary evidence. And, contrary to Singh’s claim, the IJ is not required
to give an applicant the opportunity to explain inconsistencies before
reaching an adverse credibility determination. See Alvarado-Rivas v. Holder,
547 F. App’x 630, 631 (5th Cir. 2013) (rejecting request to “impose a rule
that an immigration judge must give an applicant an opportunity to explain
2
Case: 20-60055 Document: 00515914027 Page: 3 Date Filed: 06/24/2021
No. 20-60055
any perceived discrepancies before making an adverse credibility
determination”); Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006)
(recognizing unpublished opinions issued after 1 January 1996 are not
controlling precedent but may be considered persuasive authority). In
addition, Singh’s contention that the IJ erred by relying on the credible-fear
interview as part of its credibility finding was not exhausted before the BIA.
See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (“An alien fails
to exhaust his administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA”.).
Singh’s next claim rests on a misunderstanding. In finding his lack of
credibility dispositive of his claim for asylum, the BIA and IJ did not fail to
analyze his fear of future persecution. Where, as here, an applicant’s
testimony is the primary evidence in support of his asylum application, an
adverse credibility finding can be dispositive of his claim. See Chun, 40 F.3d
at 79 (“Without credible evidence, the BIA had no basis upon which to grant
asylum or withhold deportation. . . . [W]e find that [petitioner’s] lack of
credibility is an adequate ground for affirming”); Zhang v. Gonzales, 432 F.3d
339, 345 (5th Cir. 2005) (“Without a credible showing that he is a
practitioner of [his professed religion, petitioner] cannot meet his burden of
proving past or future mistreatment”.).
Finally, to obtain relief under CAT, Singh must show, inter alia, it is
more likely than not he would be tortured if returned to his home country.
See C.F.R. § 208.16(c)(2); Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).
Insofar as Singh challenges the BIA’s conclusion that the IJ’s adverse
credibility determination was dispositive of his CAT claim, he does not show
error. See Dayo v. Holder, 687 F.3d 653, 659 (5th Cir. 2012) (“[B]ecause the
same lack of evidence [from petitioner’s asylum and withholding of removal
3
Case: 20-60055 Document: 00515914027 Page: 4 Date Filed: 06/24/2021
No. 20-60055
claims] means that [petitioner] cannot show he will be tortured, he is not
entitled to relief under the CAT”).
DISMISSED IN PART; DENIED IN PART.
4