Singh v. Wilkinson ( 2021 )

Case: 20-60438 Document: 00515764822 Page: 1 Date Filed: 03/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 3, 2021
No. 20-60438
Summary Calendar Lyle W. Cayce
Clerk
Arshdeep Singh, also known as Archdeep Singh,
Petitioner,
versus
Robert M. Wilkinson, Acting U. S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 747 844
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Arshdeep Singh, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (BIA) dismissing his appeal from an order
of an Immigration Judge (IJ) 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opinion should not be published and is not precedent except under the limited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.
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No. 20-60438
contends: the BIA erred in affirming the IJ’s adverse credibility
determination in his application (on the basis of his political opinion) for
asylum and withholding of removal; the BIA and IJ failed, for the purposes of
CAT, to provide a “reasoned analysis” of the likelihood of his future torture
in India; and the IJ inappropriately assumed Singh could be relocated within
India. His claims fail.
We review the BIA’s decision, and that of the IJ insofar as it
influenced the BIA. E.g., Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
Legal conclusions are reviewed de novo; factual findings, for substantial
evidence. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017).
Substantial evidence requires the decision be based on the evidence
presented and be substantially reasonable. Sharma v. Holder, 729 F.3d 407,
411 (5th Cir. 2013).
Regarding the credibility issue, an adverse credibility determination is
a factual finding. Singh v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018). In
making a credibility determination, an IJ may consider, inter alia, the internal
inconsistencies of an asylum applicant’s or witness’ testimony. 8 U.S.C.
§ 1158(b)(1)(B)(iii). An IJ “may rely on any inconsistency or omission in
making an adverse credibility determination as long as the totality of the
circumstances establishes that an asylum applicant is not credible”. Wang,
569 F.3d at 538 (internal quotation marks and citation omitted). We defer to
the BIA’s factual findings “unless the evidence is so compelling that no
reasonable fact finder could fail to find otherwise”. Id. (internal quotation
marks and citation omitted).
The BIA affirmed the IJ’s adverse credibility determination based on
the IJ’s finding numerous omissions and inconsistencies in Singh’s
testimony. Singh concedes, inter alia: he did not mention in his testimony
that his mother accompanied him when he reported his first beating by
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No. 20-60438
members of the Congress Party; he testified he saw different doctors
following two attacks on him by Congress Party members, but he submitted
two medical letters signed by the same doctor; and he gave inconsistent
testimony regarding the timing of his departure from India. Nonetheless,
Singh maintains the IJ improperly: based its adverse credibility
determination on trivial inconsistencies and mistakes about minor details;
engaged in unwarranted speculation by concluding the medical letters were
fraudulent; and failed to give him the opportunity to address any perceived
problems in his testimony.
The record does not compel a determination Singh was credible. See
Id. at 538–40. The IJ properly considered the inconsistencies in Singh’s
testimony and, accordingly, its adverse credibility determination is supported
by substantial evidence. Contrary to Singh’s claim—and as the BIA
determined—the IJ did not expressly find the medical letters were
fraudulent. Regardless, the IJ’s concern about the veracity of the letters was
substantially reasonable given a report in the record. See Chen v. Gonzales,
470 F.3d 1131, 1142 (5th Cir. 2006) (referencing a Country Report in the
record in evaluating the substantial reasonableness of the IJ’s determination).
Further, 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 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).
Singh’s challenge to the denial of protection under CAT similarly
fails. Insofar as he claims the IJ and the BIA erred by failing to provide a
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No. 20-60438
sufficiently “reasoned analysis” of his CAT claim, the issue is unexhausted;
therefore, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1). To
the extent 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 defendant’s asylum and withholding of removal
claims] means that [defendant] cannot show he will be tortured, he is not
entitled to relief under the CAT”).
Regarding internal-relocation claim, Singh asserts: the IJ engaged in
improper speculation in determining the Congress Party would not pursue
him were he to relocate within India; and the matter should be remanded for
a more thorough examination of the issue. The IJ, however, did not make a
merits determination on the internal-relocation issue; rather, in the course of
explaining the adverse credibility determination, the IJ merely discussed the
implausibility of Singh’s testimony that the Congress Party would track him
throughout India. Obviously, because the internal-relocation issue is not
relevant, it need not be reviewed. See Bianchini v. Humble Pipe Line Co., 480
F.2d 251, 255 (5th Cir. 1973) (“[W]e need not address that issue because we
find that [it] has no relevance to this appeal”).
DISMISSED IN PART; DENIED IN PART.
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