Balwinder Singh v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER SINGH, No. 20-72335
Petitioner, Agency No. A206-088-069
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2021**
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
Balwinder Singh, a native and citizen of India, petitions for review of a
decision of the Board of Immigration Appeals affirming an immigration judge’s
decision denying his claims for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252, and we deny the petition for review.
“We review factual findings, including adverse credibility determinations,
for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).
Under that standard, the agency’s finding of fact is conclusive unless “any
reasonable adjudicator would be compelled to conclude to the contrary.” Ren v.
Holder, 648 F.3d 1079, 1083 (9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).
In assessing an adverse credibility finding, the court must look to the “totality of
the circumstances[] and all relevant factors.” Alam v. Garland, 11 F.4th 1133, 1137
(9th Cir. 2021) (en banc) (alteration in original) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)).
Substantial evidence supports the Board’s determination that Singh was not
credible. At Singh’s hearing, he claimed for the first time that the police threated to
file a false charge against him if he tried to report beatings he received from
members of the Congress Party who opposed his involvement in the Akali Dal
Mann Party. Though “mere omission of details is insufficient to uphold an adverse
credibility finding,” an adverse credibility finding may be warranted when an
applicant presents new allegations that tell a “more compelling” story than his
initial application. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016)
(first quoting Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014), and then quoting
Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)). The agency was not
2
required to accept Singh’s explanation that he was trying to be brief in his
declaration and planned to provide more details at the hearing. See Zamanov, 649
F.3d at 974.
The agency also did not err in determining that Singh’s speculation
undermined his credibility. In response to questioning, Singh speculated that
members of the Congress Party might have been responsible for a burglary of his
wife’s home. Singh explained on appeal to the Board that he had merely been
“thinking out loud” and did not testify about the burglary earlier because he had no
proof of the Congress Party’s involvement. The Board did not err in rejecting
Singh’s explanation of a last-minute allegation that could be interpreted as an
attempt to “artificially enhance [Singh’s] claims of persecution.” Iman v. Barr, 972
F.3d 1058, 1068 (9th Cir. 2020).
Finally, Singh’s shifting testimony about his visa application damaged his
credibility. At his hearing, Singh first testified that he had never applied for a visa
to come to the United States. When presented with his visa application, Singh
testified that he did not recognize himself in the photo. Later, he admitted that he
had once gone to the United States embassy to apply for a visa, but he said that he
could not remember whether he applied for the visa before or after he joined the
Akali Dal Mann Party. Singh argues that his visa application is irrelevant to his
claims of persecution, but the Board may support its adverse credibility finding
3
with “any” non-trivial inconsistency in the record. Shrestha v. Holder, 590 F.3d
1034, 1044 (9th Cir. 2010).
Although the adverse credibility finding sufficiently supports the denial of
both asylum and withholding of removal, “[a]n adverse credibility determination is
not necessarily a death knell to CAT protection.” Shrestha, 590 F.3d at 1048.
When an applicant has been deemed not credible, “country conditions alone can
play a decisive role in granting relief under the Convention.” Mukulumbutu v.
Barr, 977 F.3d 924, 927 (9th Cir. 2020) (quoting Kamalthas v. INS, 251 F.3d 1279,
1280 (9th Cir. 2001)). Here, however, the evidence of country conditions
submitted by Singh does not compel the conclusion that he is more likely than not
to be tortured if returned to India.
PETITION DENIED.
4