Singh v. Garland ( 2023 )

Case: 23-60030 Document: 00516844560 Page: 1 Date Filed: 08/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 3, 2023
No. 23-60030
Lyle W. Cayce
Summary Calendar
Clerk
____________
Jagjit Singh,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 170 071
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Jagjit Singh, a native and citizen of India and proceeding pro se,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
denying his motion to reopen.
In 2018, an Immigration Judge (IJ)—after Singh conceded his
removability—ordered him removable and denied his application for asylum,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60030
withholding of removal, and protection under the Convention Against
Torture. In doing so, it found Singh’s testimony incredible. The BIA
affirmed that decision in March 2020, upholding the IJ’s adverse credibility
determination and ruling Singh failed to present evidence independent of his
testimony to support his application. This court denied his petition for
review, likewise upholding the adverse credibility finding. See Singh v.
Garland, 843 F. App’x 632 (5th Cir. 2021). Singh filed the instant motion in
May 2022, alleging changed country conditions warranted reopening.
Because motions to reopen are “disfavored”, we review denials of
those motions “under a highly deferential abuse-of-discretion standard”.
Zhao v. Gonzalez, 404 F.3d 295, 303–04 (5th Cir. 2005) (citations omitted).
The BIA “abuses its discretion when it issues a decision that is capricious,
irrational, utterly without foundation in the evidence, based on legally
erroneous interpretations of statutes or regulations, or based on unexplained
departures from regulations or established policies”. Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014).
“[T]o prevail on a motion to reopen alleging changed country
conditions where the persecution claim was previously denied based on an
adverse credibility finding in the underlying proceedings, the respondent
must either overcome the prior determination or show that the new claim is
independent of the evidence that was found to be not credible”. Matter of F-
S-N-, 28 I. & N. Dec. 1, 3 (BIA 2020).
Singh has failed to overcome the prior adverse credibility
determination. The BIA ruled he failed to “proffer specific arguments” in
his motion to reopen “to contest the credibility concerns relied on by the
[IJ]” in denying his application for relief. Singh does not challenge, before
this court, the BIA’s ruling nor does he even attempt to address the IJ’s
concerns regarding the inconsistencies in his testimony, other than to
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No. 23-60030
characterize them as “trivial” and “not material to [his] claim of
persecution”. This, however, is identical to the argument Singh made in his
brief before the BIA, which was rejected as insufficient. See, e.g., Singh v.
Sessions, 880 F.3d 220, 225 (5th Cir. 2018) (explaining “IJ may rely on any
inconsistency or omission in making an adverse credibility determination”
(emphasis added) (citation omitted)). Singh fails to show the BIA’s decision
was “capricious, irrational, [or] utterly without foundation in the evidence”.
Barrios-Cantarero, 772 F.3d at 1021.
The BIA also reasonably concluded Singh failed to present a new
claim that was independent from the evidence previously found not credible.
See Matter of F-S-N-, 28 I. & N. Dec. at 3. Here, the “new” allegations
presented in Singh’s motion to reopen are: he is still a practicing Sikh who
supports the Mann Party; and, since his removal hearing, Badal Party
members threatened his safety in India if he continued to support the Mann
Party. These allegations are not independent of his prior claim of political
persecution by the Badal Party; they “merely supplement[] it” and
“intertwin[e] the new with the old”. Id. at 5 (citation omitted). As such, the
BIA properly concluded that “[t]he grounds for [Singh’s] current fear of
future harm are not new or independent of his prior application, but rather
[are] a continuation of his previously discredited claims”. See id. at 4
(providing “newly raised claim is not independent” of prior claim where it
“is, in essence, a continuation of the respondent’s previously discredited
claims”).
DENIED.
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