Abinderbir Singh v. Eric H. Holder, Jr. , 340 F. App'x 312 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0561n.06
No. 08-3842 FILED
Aug 12, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
ABINDERBIR SINGH, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM THE
v. ) BOARD OF IMMIGRATION APPEALS
)
ERIC HOLDER, United States Attorney )
General, ) OPINION
)
Respondent. )
_____________________________________)
Before: GILMAN, COOK, and FARRIS, Circuit Judges.*
RONALD LEE GILMAN, Circuit Judge. Abinderbir Singh, a native and citizen of India,
lawfully entered the United States in March 1999 as a temporary visitor. He filed an application four
months later for asylum, withholding of removal, and relief under the Convention Against Torture
(CAT), claiming political and religious persecution in India based on his being a member of the Sikh
religion. In 2006, an Immigration Judge (IJ) conducted a hearing on the case and denied Singh’s
application, finding that Singh was not credible. The Board of Immigration Appeals (BIA) affirmed
the IJ’s decision, and Singh appealed. For the reasons set forth below, we DENY Singh’s petition
for review.
*
The Honorable Jerome Farris, Senior United States Circuit Judge for the Court of Appeals for the Ninth
Circuit, sitting by designation.
No. 08-3842
Singh v. Holder
I. BACKGROUND
A. Factual background
Singh was raised in the Sikh religious tradition in the Amritsar District of Punjab, India.
While a student in college, he joined the “All-India Sikh Student Federation” (AISSF). At the merits
hearing before the IJ, Singh testified that the AISSF is an organization dedicated to promoting the
Sikh religion among students, and that it is a “very peaceful party.” Part of Singh’s responsibilities
was distributing religious literature. In connection with his activities, he was allegedly arrested by
the police in April 1984. He testified at the hearing that he was taken to the police station, held for
three days, and beaten. The police warned him not to distribute any more religious literature.
Singh was arrested again by the police later in 1984 as a result of clashes between the Indian
army and Sikh religious leaders in Punjab. The Indian army ransacked the Golden Temple, the main
place of Sikh worship, and arrested hundreds of Sikhs from the region, including Singh and his
cousin. Singh testified that he was present during the ransacking of the Temple, and that “three or
four” Sikhs were killed. After being arrested, he was held in a “camp” and allegedly beaten “in the
morning and evening.” He was released almost a week later, after being warned again not to
distribute religious literature. After these incidents, the AISSF was declared to be an illegal
organization by the Indian government. Singh then left the Punjab region and went to live in
Calcutta for a year and a half. He returned to Punjab when a Sikh-led government came to power
in the region.
In 1989, Singh joined Shiromani Akali Dal, a political party active in the Punjab region that
advocated a separate Sikh state. He eventually became the vice president of the rural areas in that
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organization. In September 1995, Singh was arrested and detained for four days because he agitated
for the release from prison of another party official. Singh testified that he was interrogated, beaten
by a stick, and hung upside down while in custody. His father arranged for his release by bribing
police officers.
In 1994, Singh’s infant son died in an incident involving the police. Singh testified at the
hearing that he and his family were driving through a checkpoint about two or three kilometers from
Amritsar, his hometown. The police recognized him as a party leader, followed him in a Jeep after
he went through the checkpoint, and ordered him to stop. Singh and his wife were then told to step
out of the car. As his wife was getting out, the police pulled her. In the ensuing “scuffle,” the six-
month-old infant was dropped on the ground and seriously injured. The Singhs brought their son
to a family doctor for treatment, but the child did not survive. Singh did not file a complaint with
the police about the death, but did inform his party.
In 1998, Singh was again arrested and detained for three days after he went to the “SDM,”
a “subdivision district” in the region “responsible for law,” to complain about the arrest of his uncle.
Singh testified that he was peaceful while at the SDM office, but the police came to his home that
evening and arrested him. After he was released, the police visited Singh’s home again, but he was
not there at the time. Singh testified that the policemen told his father that they were there to arrest
Singh again because they suspected that he was hosting a meeting of militants at his home. Afraid
to go home, Singh left for a neighboring town. From there, he obtained a tourist visa and entered
the United States.
B. Procedural history
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The government initiated removal proceedings against Singh in January 2000. Singh
appeared before the immigration court and conceded removability. His case was initially set to be
heard in San Francisco, but was later transferred to Michigan, where he resides. In addition to his
own testimony, Singh’s wife and his cousin provided evidence at Singh’s hearing.
At the end of the hearing, the IJ delivered an oral opinion in which she found Singh not
credible and denied his application for asylum, withholding of removal, and relief under the CAT.
The IJ based her credibility finding on an exhaustive list of inconsistencies between Singh’s written
asylum application and his hearing testimony. She also concluded that even if Singh was credible,
he had no reasonable basis to fear countrywide persecution in India because Singh testified at the
hearing that he was able to relocate to Calcutta for one and a half years without incident. The IJ
therefore denied Singh’s application on this alternative ground as well.
Following Singh’s appeal, the BIA affirmed the IJ’s decision, concluding that her findings
of fact, including her assessment of Singh’s credibility, were not clearly erroneous. It found that
the principal shortcomings and inconsistencies cited by the
Immigration Judge are present in the record, are substantial and go to
the heart of the respondent’s asylum claim, and have not been
adequately explained by the respondent.
The BIA also found that Singh failed to submit reasonably available corroborative evidence. This
timely appeal followed.
II. ANALYSIS
A. Standard of review
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“Because the BIA adopted the IJ’s decision with additional commentary, we review the
decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey,
511 F.3d 583, 588 (6th Cir. 2007). Questions of law involving immigration proceedings are
reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004). The IJ’s factual findings, on
the other hand, including a determination that the petitioner failed to establish eligibility for asylum
or withholding of removal, will not be disturbed if substantial evidence supports such
determinations. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (holding that a factfinder’s rulings
will be upheld if “supported by reasonable, substantial, and probative evidence on the record
considered as a whole” (citation omitted)). Under this standard, we will not reverse a factual
determination of the IJ unless we find “that the evidence not only supports a contrary conclusion,
but compels it.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (emphasis in original).
B. The statutory framework
Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1158(b), the U.S. Attorney
General has discretion to grant asylum to a refugee. The disposition of an application for asylum
involves a two-step inquiry: (1) whether the applicant qualifies as a “refugee” as defined in 8 U.S.C.
§ 1101(a)(42)(A), and (2) whether the applicant “merits a favorable exercise of discretion by the
Attorney General.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-
Fonseca, 480 U.S. 421, 428 n.5 (1987)).
Section 1101(a)942)(A) of the INA defines a “refugee” as an alien who is unable or unwilling
to return to his home country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political opinion.”
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An applicant may therefore establish eligibility for asylum by showing that he or she (1) has suffered
past persecution, or (2) has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). The
burden is on the applicant to establish that he or she qualifies as a refugee. 8 C.F.R. § 1208.13(a).
If credible, the applicant’s testimony “may be sufficient to sustain the burden of proof without
corroboration.” 8 C.F.R. § 1208.13(a).
Once the applicant shows that he or she has suffered from past persecution, the applicant is
presumed to have a well-founded fear of future persecution. Mikhailevitch v. INS, 146 F.3d 384, 389
(6th Cir. 1998). This presumption can be rebutted by the government only through establishing by
a preponderance of the evidence that, since the persecution occurred, conditions in the applicant’s
home country have changed to such an extent that the applicant no longer has a well-founded fear
of being persecuted if he or she were to return. Id.
C. The IJ’s credibility finding
The IJ’s opinion contains an exhaustive analysis of Singh’s application. We shall outline
only the main points here. Most importantly, the IJ found a number of inconsistencies regarding the
circumstances surrounding the death of Singh’s son. Singh’s written application stated that “one
police snatched my son from my wife and threw him on the ground.” But at the hearing, both Singh
and his wife testified that his son “fell” from his wife’s lap as she was being forced out of the
vehicle.
The IJ also expressed concern about the two different death certificates that Singh provided
to allegedly verify his son’s death, each bearing a different date of death, a different date of
registration for the death, and a different place of death. Moreover, Singh’s written application,
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unlike his testimony at the hearing, omitted any reference to the medical treatment that his son
received. Singh also never submitted any medical records or affidavit from the family doctor
regarding his son’s treatment, even though such evidence was reasonably available because his
brother, a United States citizen, had been to India and back twice between 1996 and the date of the
hearing.
The IJ further found that Singh’s description of his involvement with the AISSF was riddled
with inconsistencies. Singh’s testimony and the documents he submitted alluded to three different
dates regarding when he joined the AISSF. Singh also gave inconsistent descriptions about the
nature of the AISSF. In his asylum application, Singh described the AISSF as a political
organization, and specifically described his role in organizing the training camps as “very useful to
preach religion, create political awareness among young Sikhs and recruit them in the federation.”
But at the hearing, he testified that the AISSF is a student religious organization that is not involved
in politics. The IJ also questioned Singh’s characterization of the AISSF as “peaceful,”
“nonmilitant,” and “faction-free,” which she found to be in conflict with the country-condition report
for India and the testimony of Singh’s cousin at the hearing. Finally, the IJ pointed to the
inconsistent testimony of Singh and his wife regarding how long Singh remained active with the
AISSF.
The IJ also found that Singh omitted key details regarding his arrests. With respect to the
April 1984 arrest, Singh stated in his application that he was interrogated by the police regarding his
political activities and the source of financial aid to the AISSF. But Singh made no mention during
his direct examination of being interrogated by the police, even after his attorney explicitly asked
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him if this had occurred. The IJ further noted that Singh gave inconsistent dates as to his second
arrest in 1984. Singh also gave conflicting accounts of how many people died during the Golden
Temple incident preceding the second arrest. His written application stated that “hundreds of
innocent Sikhs” were killed, but when he testified at the hearing, he stated that only three or four
people had died.
Finally, the IJ found that Singh gave conflicting testimony about his involvement in the
Shiromani Akali Dal political party. Singh testified at the hearing that he held no office other than
the vice president of the rural areas. But in his written application, he stated that in 1990 he was
elected the president of the party’s “cooperative society” consisting of the villages of Vachhoa, Bath,
Loharka, and Ferveria, and a director from the Ajnala Zone. Singh made no mention of these
positions at the hearing. Moreover, in his asylum application, Singh failed to mention being beaten
with a stick and hung upside down during his arrest and detention in 1995 in connection with his
involvement with the Shiromani Akali Dal party.
In sum, we believe that the IJ’s factual findings are supported by substantial evidence in the
record. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The IJ pointed to numerous
inconsistencies with regard to each of Singh’s alleged incidents of persecution, and some of these
inconsistencies go to the heart of Singh’s claim and cast doubt on his credibility. Especially
damaging to Singh’s credibility determination are: (1) the numerous inconsistencies regarding his
membership and level of involvement in the AISSF and the Shiromani Akali Dal party; (2) the
inconsistencies between his written application and hearing testimony regarding the details of his
April 1984 arrest and his 1995 arrest; (3) the conflicting accounts in the written application and in
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the hearing testimony about how his son died; and (4) the two death certificates that he submitted
to verify his son’s death, each containing significantly different information. Because Singh’s
membership in the AISSF and the Shiromani Akali Dal, the alleged arrests, and the death of his child
are central to his allegations of government persecution for his participation in Sikh organizations,
these inconsistencies directly affect his asylum claim. See Sylla v. INS, 388 F.3d 924, 926 (6th Cir.
2004) (“[A]dverse credibility finding[s] must be based on issues that go to the heart of the
applicant’s claim.”). The evidence in the record thus does not “compel” a contrary conclusion to the
IJ’s adverse credibility determination. See 8 U.S.C. § 1252 (b)(4)(B); Marku v. Ashcroft, 380 F.3d
982, 986 (6th Cir. 2004).
Singh therefore failed to meet his burden of establishing that he is a refugee within the
statutory definition of the term because he did not provide credible evidence that he has suffered past
persecution or has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(a)-(b).
Because the IJ’s adverse credibility determination is supported by substantial evidence, we need not
reach the issue of whether the IJ properly denied Singh’s asylum application on the alternative
grounds that, even if Singh was credible, he had no reasonable basis to fear countrywide persecution
in India.
Singh’s other claims—for withholding of removal and relief under the CAT—are similarly
without merit because they each require an applicant to meet an even higher burden of proof than
is needed to establish an asylum claim. See Khalili v. Holder, 557 F.3d 429, 435-36 (6th Cir. 2009)
(withholding of removal); Ali v. Reno, 237 F.3d 591, 596-97 (6th Cir. 2001) (relief under the CAT).
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III. CONCLUSION
For all of the reasons set forth above, we DENY Singh’s petition for review.
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