Amardeep Singh v. Loretta E. Lynch , 803 F.3d 988 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1285
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Amardeep Singh, also known as Amardeep Simngh
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 10, 2015
Filed: October 14, 2015
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
Amardeep Singh, a native and citizen of India, petitions for review of an order
of the Board of Immigration Appeals (Board) affirming an immigration judge’s (IJ)
denial of his application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Singh also challenges the Board’s rejection of
his claim of ineffective assistance of counsel. We deny the petition for review.
I. BACKGROUND
In August 2011, Singh entered the United States near Hidalgo, Texas, without
a valid visa or other entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I)
(documentation requirements). Singh is a Sikh and a member of the Shirmoani Akali
Dal Amritsar party led by Sardar Simranjit Singh Mann (Mann Party). When
detained by the U.S. Department of Homeland Security (DHS), Singh asserted he
feared persecution by the rival India Congress Party (Congress Party) if returned to
India. Singh told a DHS asylum officer that members of the Congress Party had twice
beaten him for refusing to switch parties. The officer found Singh had “a credible
fear of persecution” for his political opinion and referred Singh’s application for
further consideration. Id. § 1225(b)(1)(A)(ii), (B)(ii).
On September 9, 2011, DHS initiated removal proceedings. Conceding
removability, Singh applied for asylum, withholding of removal, and CAT protection.
See id. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. § 1208.16(c). On March 21, 2012,
the IJ continued Singh’s removal hearing to permit Singh to obtain new counsel.
Singh’s retained counsel did not attend the rescheduled removal hearing on
November 13, 2012, despite a promise to do so, instead sending an unprepared
associate to appear for Singh. The IJ chastised counsel for not being ready to
proceed, but granted another continuance—though shorter than counsel sought.
At the rescheduled hearing on December 5, 2012, Singh testified through an
interpreter that he was a farmer in India and a low-level member of the Mann Party.
Singh reported he fled India for the United States because he feared persecution for
his political views. Singh again described two instances where he had been attacked
and beaten by members of the Congress Party who told him to disavow the Mann
Party and join the Congress Party. Singh provided several documents to support his
request for asylum.
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On August 8, 2013, the IJ denied Singh’s application and ordered him
removed. Thoroughly examining the record, the IJ decided Singh was “not credible
because his testimony contradicted information he gave at his [credible fear interview
with the asylum officer] and because he was nonresponsive and evasive during cross-
examination.” The IJ found “[s]ome testimony was unbelievable” and some was
“directly contradicted” by “the corroborating evidence,” but all lacked sufficient
record support.
The IJ alternatively found that, even if credible, Singh’s accounts of minor
beatings and short detentions did “not rise to the level of persecution.” The IJ also
found Singh failed to establish a well-founded fear of future persecution. Because
Singh was not eligible for asylum and did not present evidence he would face torture
for other reasons, the IJ concluded he could not establish an entitlement to
withholding of removal or relief under the CAT.
With new counsel, Singh timely appealed to the Board, which denied relief.
The Board agreed with the IJ that Singh was not credible and alternatively “that,
assuming credibility, [Singh] did not demonstrate that he suffered past persecution
or that he has a well-founded fear of future persecution based on the record evidence
and country conditions in Punjab, India.” In addition to upholding the IJ’s decision
on the merits, the Board rejected Singh’s assertion he was prejudiced by his prior
counsel’s ineffective assistance. Singh petitions for review of the Board’s order.
II. DISCUSSION
A. Standards of Review
We review the Board’s “decision as the final agency action, but to the extent
the [Board] adopts the findings of the IJ, this court reviews those findings as part of
the final agency action.” R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir. 2012). In
evaluating Singh’s petition, we review de novo his due process claim, see Zheng v.
Holder, 698 F.3d 710, 714 (8th Cir. 2012), and any issues of law, see Ademo v.
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Lynch, 795 F.3d 823, 828 (8th Cir. 2015). “We review the IJ’s findings of fact,
including adverse credibility findings, under the deferential substantial evidence
standard, and must treat those findings as ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Sandoval-Loffredo v.
Gonzales, 414 F.3d 892, 895 (8th Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)).
B. Credibility
“To qualify for asylum, [Singh] must show that he is unable or unwilling to
return to his country of origin 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.” Nanic v. Lynch, 793 F.3d 945, 947 (8th Cir. 2015)
(citing 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A)). Proof of past persecution gives
rise to a rebuttable presumption of “a well founded fear of future persecution.” Uli
v. Mukasey, 533 F.3d 950, 955 (8th Cir. 2008).
Persecution “is an ‘extreme concept’ that involves the infliction or threat of
death, torture, or injury to one’s person or freedom, on account of a protected
characteristic.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir. 2010) (quoting
Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)). It “does not include
low-level intimidation and harassment.” Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th
Cir. 2004). “In addition, persecution is a harm that is inflicted either by the
government of a country or by persons or an organization that the government was
unable or unwilling to control.” Shaghil v. Holder, 638 F.3d 828, 834 (8th Cir. 2011)
(quoting Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)) (internal marks
omitted).
An applicant can prove persecution “without corroboration, but only if the
applicant satisfies the trier of fact that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate that the applicant is
a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). “An IJ may properly request evidence to
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corroborate an alien’s claims if his credibility is in question.” Prokopenko v.
Ashcroft, 372 F.3d 941, 945 (8th Cir. 2004). “[E]vidence of persecution that is
‘insufficiently specific or imminent’ does not establish persecution for an asylum
claim.” Litvinov v. Holder, 605 F.3d 548, 554 (8th Cir. 2010) (quoting Ladyha v.
Holder, 588 F.3d 574, 577 (8th Cir. 2009)).
Singh claims he was and will be persecuted in India because he will not change
political parties. After hearing Singh’s testimony and reviewing the other evidence
in the record, the IJ found Singh was not credible because of inconsistencies in his
testimony and a lack of evidentiary support. Singh claims the IJ’s “adverse credibility
finding should be reversed” because, in Singh’s view, “it is based almost exclusively
on collateral matters that are not relevant to the key facts of [Singh’s] claim” and the
IJ failed to give adequate notice of the need for corroborating evidence. Singh’s
claims are without merit.1
Singh complains the IJ’s credibility determination was based on the IJ’s
“improper consideration of” “evidence that is not relevant or probative or
1
For the first time in his brief on appeal, Singh alleges judicial interference and
bias created “an atmosphere of hostility, aggression and lack of cooperation on the
part of the Immigration Court [toward Singh, his counsel, and the interpreter] that
leaves serious doubts as to whether this record can even be trusted” and deprived him
of a fair hearing. Although Singh’s assertions of judicial misconduct and debilitating
record deficiencies appear unlikely to withstand even the slightest scrutiny, we do not
consider these issues here because Singh did not present them to the Board. See
Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir. 2013) (“A petitioner has not
exhausted administrative remedies with respect to a particular issue [as required by
8 U.S.C. § 1252(d)(1)] if he fails to raise it when he appeals to the Board.” (quoting
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (internal marks omitted)));
Mambwe v. Holder, 572 F.3d 540, 551 (8th Cir. 2009) (“[T]o the extent [the
petitioner]’s due process claim relates to the proceedings before the IJ, we may not
consider it because [the petitioner] failed to raise the issue in her appeal to the
[Board].”).
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fundamentally fair when related to the actual incidents of persecution.” As Singh
sees it, he is entitled to a new hearing because the agency should have focused not on
his understanding of “broad political” issues and what he calls “minor inconsistencies
or inaccuracies on tangential issues” and “innocuous failures in [Singh’s] knowledge”
but on his consistent account of “two particular physical attacks, post attack threats,
and his flight from” India. Singh misconstrues the IJ’s task and the scope of appellate
review.
Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). And “we defer to an IJ’s credibility
determination where, as here, it is supported by ‘specific, cogent reasons for
disbelief.’” Fesehaye v. Holder, 607 F.3d 523, 527 (8th Cir. 2010) (quoting Onsongo
v. Gonzales, 457 F.3d 849, 852 (8th Cir. 2006)).
Notwithstanding Singh’s contention to the contrary, Singh received sufficient
notice and a fair opportunity to obtain and present evidence to corroborate his claims.
The IJ and Board then duly considered Singh’s testimony in relation to the other
relevant factors. The IJ and Board merely found Singh’s inconsistent reports of
persecution insufficiently supported by record evidence and outweighed by the
balance of the totality of the circumstances.
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Closely examining Singh’s understanding of the goals of his party and the
political atmosphere in Punjab, the IJ found Singh’s description incredible,
implausible, and contradicted by his prior testimony and other evidence, including
evidence describing country conditions in India. The IJ found Singh became
“nonresponsive” and “generally evasive” when confronted with such material
inconsistencies and contradictions. Singh’s admission that the agent who brought
him to the United States had coached him about what to say and not to say to obtain
asylum reasonably heightened the IJ’s concerns about Singh’s credibility. The
Board—in concluding the IJ’s “adverse credibility finding [wa]s not clearly
erroneous”—agreed Singh “gave inconsistent, evasive, and generally incoherent
testimony describing the various political parties in Punjab, India and the general
conditions there.”
Singh concedes he became nonresponsive and made inconsistent and
inaccurate statements but maintains they were minor, irrelevant, and the result of
nerves and fear. But Singh’s attempts to minimize the flaws in his live testimony and
to rationalize his evasive demeanor do not persuade us the IJ was compelled to find
his testimony credible under the circumstances of this case. See 8 U.S.C.
§ 1252(b)(4)(B); Mayemba v. Holder, 776 F.3d 542, 545 (8th Cir. 2015) (“‘It is well
settled that an immigration judge is in the best position to make credibility findings
because he or she sees the witness as the testimony is given.’” (quoting Ismail v.
Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005))).
Upon careful review, we are satisfied the IJ’s adverse credibility finding was
based on substantial record evidence and supported by specific, cogent reasons. See
Fesehaye, 607 F.3d at 527. Because Singh’s “asylum, withholding of removal, and
CAT claims were based upon the same discredited testimony,” that “adverse
credibility finding is fatal to all three” of Singh’s claims for relief from removal.
Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006).
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C. Ineffective Assistance of Counsel
We also deny Singh’s petition for review of the Board’s rejection of Singh’s
ineffective assistance claim. Singh argues he is entitled to remand for a new hearing
because his hearing counsel was ineffective in failing to (1) file documents timely;
(2) submit Singh’s statement in support of his application for asylum on time; and
(3) secure corroborating evidence of Singh’s hospital visit following the second
attack. Singh complains his counsel’s “overall appearance of incompetence . . . no
doubt irked the [IJ] and created a negative hearing atmosphere that prejudiced” him
and undermined his right to a fundamentally fair hearing.
Despite acknowledging before the Board that we have held “there is no
constitutional right under the Fifth Amendment to effective assistance of counsel in
a removal proceeding,” Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008),
Singh asserts such a claim here. Ignoring Rafiyev and the scope of the claim he
presented to the Board, Singh suggests his is a “special case” and “contends that there
is a Fifth Amendment Constitutional right to effective assistance of counsel in
removal proceedings when the utter stupidity and unpreparedness of counsel serves
as the genesis for a hostile environment on the part of the Immigration Court at the
hearing, which undermines the Petitioner’s right to a fundamentally fair hearing.”
Again, we need not consider Singh’s dubious proposal, see Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc) (explaining we are bound by prior panel
opinions), because Singh did not present that proposal to the Board. See Martinez
Carcamo, 713 F.3d at 925.
But that does not end the matter. In addition to his groundless Fifth
Amendment claim, Singh reasserts the non-constitutional deficiency claim he made
before the Board. Singh asked the Board to exercise its discretion to remand for a
new merits hearing based primarily on his hearing counsel’s failure to submit
corroborating evidence on time. See Rafiyev, 536 F.3d at 861 (remanding to the
Board to consider whether the petitioner could pursue an ineffective assistance claim
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“based on the agency’s discretionary authority, without regard to a constitutional right
to due process”); In re Compean, 25 I. & N. Dec. 1, 3 (2009) (concluding the Board
has discretion to reopen removal proceedings to consider ineffective assistance claims
and restoring the framework set forth in In re Lozada, 19 I. & N. Dec. 637, 638 (BIA
1988), pending consideration of a new rule). To prevail on this claim, Singh must
show (1) his counsel was so ineffective it rendered “the proceeding . . . so
fundamentally unfair that the alien was prevented from reasonably presenting his
case,” and (2) “he was prejudiced by his [counsel’s] performance.” In re Lozada,
19 I. & N. Dec. at 638.
Assuming, without finding, deficient performance, we agree with the Board
that Singh failed to show the requisite prejudice because his “inconsistent testimony
and the [IJ’s] adverse demeanor finding based on” Singh’s nonresponsive answers to
questions about those inconsistencies “were not caused or affected by the alleged
failure to submit corroborative evidence of injuries [Singh] suffered in India.” Singh
also generally complains of his counsel’s failure to “file documents,” but the only
missing corroborating evidence he mentions specifically is a hospital record related
to the second beating. The IJ did mention the hospital record as an example of
corroborating evidence that Singh “testified that he had” yet failed to provide, but the
IJ’s analysis of Singh’s failure “to provide corroborating evidence regarding his
specific claims of persecution” was not limited to that particular record.2 And, given
the IJ’s detailed evaluation of the totality of the circumstances, we are not convinced
one missing hospital record “would have swayed the IJ.” Obleshchenko v. Ashcroft,
392 F.3d 970, 973 (8th Cir. 2004). Singh therefore has not shown the requisite
prejudice “resulting from [his] counsel’s performance.” Id.
2
In evaluating Singh’s ineffective assistance claim, we are careful not to
presume any lack of corroborating evidence is necessarily the fault of ineffective
counsel. Absent proof to the contrary, it is entirely possible that at least part of
Singh’s persecution claim simply cannot be corroborated.
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III. CONCLUSION
The petition for review is denied.
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