Rajwinder Singh v. Merrick Garland ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0303n.06
Case No. 20-4173
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 29, 2021
DEBORAH S. HUNT, Clerk
)
RAJWINDER SINGH,
)
Petitioner, ) ON PETITION FOR REVIEW
)
FROM THE UNITED STATES
v. )
) BOARD OF IMMIGRATION
) APPEALS
MERRICK B. GARLAND, Attorney General, )
Respondent. ) OPINION
)
BEFORE: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.
COLE, Circuit Judge. Rajwinder Singh petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal.
The BIA found that Singh had failed to sustain his burden of proof on his claims. Because this
decision is supported by substantial evidence, we deny Singh’s petition.
I.
Rajwinder Singh is an Indian citizen and member of the Sikh religious community who
entered the United States without admission or inspection in January 2003. Singh applied for
asylum on multiple grounds, stating that he had been arrested, harassed, and beaten repeatedly by
police in his home district in the Indian state of Punjab. In June 2008, the Department of Homeland
Security filed a notice to appear against Singh, charging him as being removable under section
212(a)(6)(A)(i) of the Immigration and National Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an
Case No. 20-4173, Singh v. Garland
alien present in the United States without having been admitted or paroled. In consecutive hearings
before the immigration court in 2009 and 2010, Singh conceded his removability and requested
asylum, withholding of removal under the INA and under the Convention Against Torture
(“CAT”), or, in the alternative, permission for voluntary departure.
At his March 2011 removal hearing, Singh specified through counsel that his asylum claim
rested on grounds of persecution for his political opinion and religion. Speaking in Punjabi
through an interpreter, Singh testified that he was a native of Punjab and made his living there as
a truck driver. In 1999, Singh joined a Sikh political party that advocated for the interests of Sikh
farmers. Singh stated that his affiliation with the party made him a target of abusive arrests,
detentions, and beatings by the local police on at least three occasions, which Singh detailed for
the Immigration Judge (“IJ”). According to Singh, none of these incidents resulted in formal
complaints or judicial proceedings in which he participated. After the last of these incidents in
2002, and faced with continued harassment and threats to his life by members of an opposing
political party, Singh decided to flee to the United States. He testified that he fears going back to
India because the police continue to seek him out, harass his family, and maintain an open file
against him.
In addition to his testimony, Singh submitted three pieces of noteworthy corroborative
evidence to support his requested relief. One was a letter dated July 20, 2010, from Singh’s “legal
consultant,” a local Punjabi attorney, who wrote that Singh’s “life and liberty [are] not safe here
in India.” (A.R. 000452.) The attorney letter then narrated the same three incidents about which
Singh had testified, with a few additional details. In closing, the letter advised Singh not to return
to India because criminal enforcement proceedings were commenced against him in late December
2002 and a warrant was issued for his arrest in May 2010. Attached to the letter was a copy of the
-2-
Case No. 20-4173, Singh v. Garland
purported arrest warrant, written in English. Singh submitted a second letter, dated February 22,
2011, apparently from Singh’s wife, and also written in English. She informed Singh that the
police continue to harass her and inquire about his whereabouts, and she advised him not to return
to India. The third piece of corroborative evidence was a 2003 affidavit from Singh’s father stating
that the police detained and beat Singh on three occasions.
In her March 2011 decision, the IJ concluded that Singh had failed to sustain his burden of
proof on all his claims. She found that Singh’s corroborative evidence was questionable and
insufficient to bolster his vague and sometimes evasive testimony. She specifically concluded that
the purported arrest warrant Singh submitted appeared to be fraudulent because it was created
solely for the purpose of his immigration proceedings. She additionally found that Singh had failed
to establish a well-founded fear of persecution based on his religion or political membership. The
IJ also denied on the merits his application for relief under the CAT.
Singh successfully appealed to the BIA, which remanded the case instructing the IJ to make
an express credibility finding and clearly state whether Singh carried his burden of proof through
testimony or documentary evidence. On remand in 2015, Singh provided the IJ with two updated
and moderately more detailed letters from his father and wife, but he offered no additional
testimony.
The IJ issued its second, written decision in September 2018, again denying Singh relief
on all three claims. This time, the decision expressly found Singh not credible, and then largely
reiterated the same criticisms it had leveled against his testimony and corroborative evidence in its
previous decision. The IJ rested her denial of asylum relief on her adverse credibility
determination alone and did not otherwise discuss the merits of Singh’s persecution claim. On
appeal a second time, the BIA affirmed the IJ’s denial of Singh’s asylum and withholding of
-3-
Case No. 20-4173, Singh v. Garland
removal claims. The BIA limited its written decision to repeating the IJ’s reasons why Singh’s
corroborative evidence was inadequate to sustain his burden of proof, reasons which the IJ had
framed against the backdrop finding that Singh’s testimony was vague, inconsistent, and evasive
at times. The BIA also found that Singh had waived his claim to relief under the CAT by failing
to argue it on appeal.
Singh timely petitioned this court to review the BIA’s decision. Before us, he argues that
substantial evidence did not support the IJ’s adverse credibility finding because the inconsistencies
the IJ identified in Singh’s statements were minor and the shortcomings of his corroborative
evidence did not outweigh his otherwise credible and consistent testimony.
II.
A. STANDARD AND SCOPE OF REVIEW
Where, as here, “the BIA reviews the immigration judge’s decision and issues a separate
opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s
decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
To the extent the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. Id.Questions of law we review de novo, but we give “substantial deference . . . to the BIA’s
interpretation of the INA and accompanying regulations.” Id. We review under the substantial-
evidence standard the BIA and IJ’s factual findings, id., including their assessments of the
applicant’s credibility and of the sufficiency of his corroborative evidence, Marikasi v. Lynch, 840
F.3d 281, 287 (6th Cir. 2016) (credibility determinations); see Dorosh v. Ashcroft, 398 F.3d 379,
383–84 (6th Cir. 2004) (adequacy and availability of corroboration). We will not reverse these
findings simply because we disagree with them. Khalili, 557 F.3d at 435. Rather, we reverse them
-4-
Case No. 20-4173, Singh v. Garland
only if “any reasonable adjudicator would be compelled to.” See id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
B. ASYLUM AND WITHHOLDING OF REMOVAL
1. Legal framework
To be eligible for asylum, the applicant must show that he “has suffered past persecution
on the basis of race, religion, nationality, social group, or political opinion” or that he “has a well-
founded fear of persecution on one of those same bases.” Cruz-Samayoa v. Holder, 607 F.3d 1145,
1150 (6th Cir. 2010) (quoting Kouljinski v. Keisler, 505 F.3d 534, 541 (6th Cir. 2007)); see
8 C.F.R. § 1208.13(b). Withholding of removal under the INA requires a similar but “more
demanding” showing, Marikasi, 840 F.3d at 292, namely, that the applicant establish a “clear
probability” of persecution based on one of those same protected grounds, Cruz-Samayoa, 607
F.3d at 1151 (quotation omitted).
Because Singh applied for asylum prior to 2005, we assess his credibility under standards
predating the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302. Marikasi, 840 F.3d at
287 n.1. An asylum claim cannot succeed if the agency does not find the applicant’s testimony
credible on points that go to the “heart” of his claim. See, e.g., Abdurakhmanov v. Holder, 735
F.3d 341, 345–46 (6th Cir. 2012). If found credible, his testimony alone may suffice to sustain his
burden of proof, without corroborative evidence, Marikasi, 840 F.3d at 288; see 8 C.F.R.
§ 208.13(a) (1997), provided that the testimony is also persuasive and detailed, see Matty v. INS,
No. 93-3172, 1994 U.S. App. LEXIS 8122, at *11 (6th Cir. Apr. 14, 1994) (per curiam); In re
Dass, 20 I. & N. Dec. 120, 124 (BIA 1989).
-5-
Case No. 20-4173, Singh v. Garland
2. Determination of adverse credibility
Substantial evidence supports the agency’s determination that Singh was not a credible
witness based on the testimony and the corroborative evidence he provided. Dispositive here is
the IJ’s finding that the purported arrest warrant Singh submitted in support of his claim was
“essentially fraudulent.” (A.R. 000066.) Singh testified that government agencies in his home
district operate and issue documents entirely in Punjabi. The arrest warrant he submitted to the IJ,
however, was written in English. When pressed on this discrepancy, Singh explained that the local
magistrate had issued the warrant to his family in English so that the American immigration court
could understand its contents. The IJ understandably found this implausible and concluded that
the warrant was created solely for these immigration proceedings. Moreover, at no point did Singh
clarify the precise nature and provenance of the suspect document, even on remand after the IJ had
questioned its authenticity. Though one could speculate as to some conceivable reason why this
arrest warrant might not be fraudulent, the record contains no such explanation and much less does
it compel us to conclude that the IJ erred in her assessment.
If anything, other components of the record only strengthen the IJ’s conclusion. Singh
submitted the warrant as part of a single exhibit with the letter from his purported attorney, who
claimed to have received information from Singh regarding the police abuse. The letter referenced
and relied on the arrest warrant, which Singh surmised the attorney might have helped procure.
But on cross-examination, Singh acknowledged that he did not know this attorney and had never
met him. Singh also testified that the letter did not accurately state the date of his departure from
India and concluded that the attorney must have received this erroneous information from his
family. In short, with regard to credibility, neither the letter nor the warrant convincingly
buttresses the other.
-6-
Case No. 20-4173, Singh v. Garland
As we held in Selami v. Gonzales, if left unexplained, a single fraudulent submission
supports an adverse credibility determination when the document goes to a key element of the
applicant’s asylum claim. See 423 F.3d 621, 625–26 (6th Cir. 2005). Here, the arrest warrant
directly supported Singh’s key contention that he had a well-founded fear of future persecution by
local police should he ever return to India. Though the IJ offered additional reasons why she found
Singh’s testimony vague, evasive, and inconsistent, we need not assess those here—the IJ’s
adverse credibility determination can rest on the fraudulent submission alone. See id. at 626; cf.
Abdurakhmanov, 735 F.3d at 349 (upholding an IJ’s adverse credibility determination on the basis
of a key inconsistency going to the heart of the applicant’s claims, despite several errors elsewhere
in the IJ’s credibility analysis).
Before us, Singh does not argue that the arrest warrant is in fact legitimate or that Selami
is inapplicable to his case. Rather, he requests that we set Selami aside and opt not to treat a single
piece of fraudulent evidence as dispositive. He encourages us instead to weigh any fraudulent
submission against the rest of the applicant’s credible testimony and corroborative evidence. We
are not free, however, to simply ignore binding precedent. Wright v. Spaulding, 939 F.3d 695, 700
(6th Cir. 2019). Selami applies here and it forecloses Singh’s petition for asylum relief.
Because Singh’s asylum claim is unavailing, his application for withholding of removal
necessarily fails as well. See Marikasi, 840 F.3d at 292.
III.
For the foregoing reasons we deny Singh’s petition for review of the BIA’s decision.
-7-