Dawinder Singh Sidhu v. Loretta E. Lynch ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAWINDER SINGH SIDHU, No. 11-71683
Petitioner, Agency No. A089-650-542
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2015**
San Francisco, California
Before: HAWKINS and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***
*
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).
***
The Honorable Barbara Jacobs Rothstein, Senior United States District
Judge for the Western District of Washington, sitting by designation.
Dawinder Singh Sidhu (“Singh”), a native and citizen of India, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition for review.
Singh filed his asylum application after the effective date of the REAL ID Act.
Pub. L. No. 109–13, 119 Stat. 231. “Under the REAL ID Act, the IJ may base an
adverse credibility determination on any relevant factor that, considered in light of the
totality of the circumstances, can reasonably be said to have a ‘bearing on a
petitioner’s veracity.’” Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)).
Substantial evidence supports the agency’s adverse credibility determination.
See Shrestha, 590 F.3d at 1039. In particular, the IJ reasonably concluded that Singh
failed to establish his identity based on documentary evidence that showed that he had
also used the surname “Dass.” See Kalouma v. Gonzales, 512 F.3d 1073, 1079 (9th
Cir. 2008) (“Part of [the applicant’s] case . . . must be satisfactory proof of his refugee
status in which identity operates as an element.”). Singh’s father was listed as “Dass”
on Singh’s daughter’s birth certificate, as well as on Singh’s pre-corrected I-589 Form
and passport. Further, Singh’s name is listed as “Dass” in a Notice of Entry of
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Appearance Form that he signed, and Singh’s date of birth in his pre-corrected I-589
matches the date of birth listed in two non-immigrant visa applications submitted by
a person named “Dass.” The visa applications feature many of Singh’s biographical
details, including his passport number, place of birth, telephone number, and mother
and wife’s names. Given the significant overlapping information, the IJ’s
determination that Singh filed the applications was also supported by substantial
evidence.
The IJ articulated specific, cogent reasons for the credibility determination
based on inconsistencies drawn from a review of the entire record and did not fail to
consider evidence that might corroborate Singh’s claims. Shrestha, 590 F.3d at
1040–41. The IJ addressed Singh’s contentions that clerical errors explain the
inconsistencies and that the non-immigrant visas were the product of identity fraud.
The IJ also denied Singh’s application because it was frivolous under 8 U.S.C.
§ 1158(d)(6). In making this finding, the IJ followed the four-part test established in
Matter of Y–L–, 24 I. & N. Dec. 151 (BIA 2007): “First, an asylum applicant must
have notice of the consequences of filing a frivolous application. Second, the IJ or
Board must make specific findings that the applicant knowingly filed a frivolous
application. Third, those findings must be supported by a preponderance of the
evidence. Finally, the applicant must be given sufficient opportunity to account for
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any discrepancies or implausibilities in his application.” Ahir v. Mukasey, 527 F.3d
912, 917 (9th Cir. 2008) (internal citations omitted). The agency’s compliance with
the four-part framework is a question of law reviewed de novo, Liu v. Holder, 640
F.3d 918, 925 (9th Cir. 2011), with factual findings reviewed for substantial evidence,
Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011).
The agency clearly satisfied each of the four elements. Singh had notice of the
consequences of filing a frivolous application because the application form he
completed warned him of them. Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir.
2012). The IJ’s findings were specific and supported by a preponderance of the
evidence. It is more likely than not that Singh fabricated his identity, a material
element of his asylum application. Further, the IJ’s determination that Singh
submitted two non-immigrant visas, and thus, was not physically present in India at
the time he asserts he was being persecuted—the heart of his asylum claim—is
supported by a preponderance of the evidence. Last, Singh had a sufficient
opportunity to account for his fraud and failed to do so. Direct and circumstantial
evidence supports the IJ’s conclusion that Singh filed a fraudulent application. Ahir,
527 F.3d at 918.
PETITION DENIED.
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