Mastan Singh v. Loretta E. Lynch , 635 F. App'x 251 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0828n.06
Case No. 14-4171
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 22, 2015
DEBORAH S. HUNT, Clerk
MASTAN SINGH, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney ) APPEALS
General, )
)
Respondent. )
BEFORE: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.
PER CURIAM. Mastan Singh petitions for review of an order of the Board of
Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of his application
for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
Singh is a native and citizen of India. He entered the United States in 2010. In 2011,
Singh filed an application for asylum, withholding of removal, and relief under the CAT,
alleging that, if removed to India, he would be persecuted or tortured based on his political
opinion and membership in a particular political party. The IJ denied Singh relief and concluded
that he knowingly filed a frivolous asylum application. The BIA affirmed the IJ’s decision.
On appeal, Singh argues that the IJ and BIA erred by concluding that his testimony was
not credible and that he failed to establish entitlement to asylum and withholding of removal.
Singh waived any challenge to the denial of relief under the CAT by failing to properly raise the
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issues in his appellate brief. See Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005).
Because the BIA issued an independent decision, we review its opinion, including any parts of
the IJ’s reasoning referenced by the BIA. See Khozhaynova v. Holder, 641 F.3d 187, 191 (6th
Cir. 2011). We review legal conclusions de novo and factual findings and credibility
determinations for substantial evidence. Id. Under the substantial-evidence standard,
administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary. Id.
Based on the discrepancies between Singh’s hearing testimony, his written application for
relief, and his answers during an asylum interview, substantial evidence supports the BIA’s
conclusion that Singh failed to testify credibly. First, Singh testified that he attended meetings
and demonstrations held by his political party, but he claimed in his asylum interview that he did
not attend meetings or demonstrations. Singh further testified that, in October 2009, police
officers arrested him, took him to jail, and threatened and slapped him, but he claimed in his
asylum application and interview that he had never been arrested and that he had not been
harmed by the government.
Singh also gave contradictory accounts of two incidents in which members of a rival
political party allegedly attacked him. Singh testified that, during the first incident, which
allegedly occurred in November 2009, his left hand and left leg were injured and that he was
hospitalized for five days. But in his asylum application and interview, Singh claimed that his
left arm was injured and that he was hospitalized for three days. In addition, Singh told
conflicting stories about the weapons that were used by his attackers. When testifying about the
second incident, which allegedly occurred in January 2010, Singh asserted that his sister was
pushed and threatened and that her clothes were partially torn off, and he claimed that the
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assailants unsuccessfully attempted to tear off his clothes. In contrast, in his asylum application
and interview, Singh claimed that the assailants slapped his sister and completely took off his
clothing.
Given the proper adverse credibility finding and the lack of other evidence showing that
Singh suffered past persecution or had a well-founded fear of future persecution on account of a
protected ground, substantial evidence supports the BIA’s determination that Singh was
ineligible for asylum and withholding of removal. See Abdurakhmanov v. Holder, 735 F.3d 341,
345 (6th Cir. 2012).
Singh also challenges the IJ’s frivolousness determination. “[A]n asylum application is
frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. Thus, a
frivolousness finding cannot be founded on “[t]he mere fact that an asylum applicant has lied in
his application.” Yousif v. Lynch, 796 F.3d 622, 629 (6th Cir. 2015). Rather, “[t]he falsehood
must be ‘material’ to the application,” meaning that “it has a natural tendency to influence, or
was capable of influencing, the decision of the decisionmaking body to which it was addressed.”
Id. (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)).1 Additionally, “[b]ecause a
finding of frivolousness is the veritable ‘death sentence’ of immigration proceedings, an IJ is
permitted to make such a finding only after complying with several procedural safeguards.” Id.
at 627 (internal quotation marks omitted).
1
Under the REAL ID Act of 2005, “a trier of fact may base a credibility determination on . . . the consistency
between the applicant’s or witness’s written and oral statements . . . without regard to whether an
inconsistency . . . goes to the heart of the applicant's claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). The Act, however, did
not alter the frivolousness standard, which requires that the inconsistency go to a material element of the asylum
application. Thus, even if the IJ concludes that an asylum applicant is not credible, the IJ must separately examine
whether the asylum application is frivolous. See Yousif, 796 F.3d at 629–30 (observing that “a finding of
frivolousness does not flow automatically from an adverse credibility determination” because “[t]he falsehood must
be ‘material’ to the application”); In re B-Y-, 25 I. & N. Dec. 236, 240 (2010) (“[A] separate assessment of the
explanations for inconsistencies and discrepancies is required for the frivolousness finding insofar as the
explanations offered may have a bearing on the determination of materiality or deliberateness of fabrication.”).
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Singh does not argue that the IJ’s frivolousness determination was procedurally unsound.
Instead, he contends that the IJ’s materiality finding relied on alleged falsehoods that did not
advance his claim of persecution by the rival political party. Thus, he argues, the alleged
falsehoods were not material to his asylum application.2
We disagree with Singh’s characterization of the IJ’s frivolousness determination. The IJ
expressly based the frivolousness finding on the “direct contradiction[s]” between Singh’s
testimony and his asylum application with regard to the October 2009 arrest and January 2010
attack. A.R. at 74. Singh testified that both of these incidents arose out of his membership in a
particular political party, which was the basis for his asylum claim. The alleged
misrepresentations were thus material to Singh’s asylum claim.
Accordingly, we deny Singh’s petition for review.
2
The Government argues that Singh forfeited this argument. Singh’s analysis is not so underdeveloped as to
constitute forfeiture. Singh cited to the correct regulation and argued that the “material element” requirement was
not met. The alleged inconsistencies, he explained, “do not go to the heart of his asylum claim” because they do not
pertain to past persecution by the rival political party. Appellant’s Br. at 12. That is enough to make out an
argument on this issue. Although part of this analysis occurs in Singh’s discussion of the IJ’s credibility finding, it
applies equally to the frivolousness determination. Accordingly, Singh was entitled to—and did—incorporate this
analysis by reference in his frivolousness discussion.
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