Kuldeep Singh v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
NOV 28 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KULDEEP SINGH, No. 16-73172
Petitioner, A205-585-737
v. MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of a Decision of the
Board of Immigration Appeals
Argued and Submitted November 15, 2018
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,**
District Judge.
After arriving at a port of entry in the United States in 2013, Petitioner
Kuldeep Singh (“Singh”) submitted applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Singh
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
claimed he was fleeing violence inflicted by his uncle, a local leader of India’s
Congress Party, because of Singh’s affiliation with the rival Mann Party. The
Mann Party is a secessionist Sikh political party that advocates for the founding of
Khalistan as a separate nation. The Immigration Judge (“IJ”) denied Singh’s
applications for relief after making an adverse credibility determination based on
six inconsistencies in Singh’s testimony and documentary evidence. The Board of
Immigration Appeals (“BIA”) adopted the IJ’s decision. Singh appeals, arguing
that the record compels a reversal of his adverse credibility determination and that
his claim for CAT protection should be remanded.
We review factual findings, such as adverse credibility determinations,
under a substantial evidence standard. Mejia–Paiz v. INS, 111 F.3d 720, 722 (9th
Cir. 1997). “Even if we might have reached a conclusion different from that
reached by the BIA, we may not reverse unless we determine that any reasonable
factfinder would have been compelled to reach that conclusion.” Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). Because the BIA
adopted the IJ’s decision in its entirety, we review the IJ decision as though it were
the BIA’s decision. See Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994);
Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc).
Under the REAL ID Act, an adverse credibility determination must be based
on the totality of the circumstances and all relevant factors. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Inconsistencies that form the basis of an adverse credibility
determination need not “go[] to the heart” of petitioner’s claims. Id. Moreover,
even before the REAL ID Act, applicable here, when inconsistencies had to “go to
the heart” of the claim of persecution, we held that “[s]o long as one of the
identified grounds is supported by substantial evidence . . . we are bound to accept
the IJ's adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.
2003); see also Shrestha v. Holder, 590 F.3d 1034, 1046-48 (9th Cir. 2010). As a
result, while the IJ focused on six inconsistencies, we need not discuss each of
them.
1. The adverse credibility finding is supported by substantial evidence.
When he entered the United States, Singh told the immigration officer who
conducted his credible fear interview that he was not a “member” but merely a
“supporter” of the Mann Party. Yet his testimony before the IJ and documentary
evidence (e.g., his father’s statement, support letter from the Mann Party, written
application for asylum, declaration) indicate that he was an official member.
Singh argues in his brief that the difference in the Punjabi language between
the words “member” and “supporter” is insignificant, and he thought that they
meant the same thing. But Singh did not offer this explanation himself during the
IJ hearing, and the Punjabi interpreter present at the hearing was not asked to
confirm if the two words have similar meanings. Indeed, it was Singh himself who
made the distinction in his credible fear interview: While denying that he was a
member, he said that he was “a strong supporter and since 2010 I have been a
worker for the party and I have participated in every activity that the members
participate in.” This response makes it difficult to conclude that Singh believed that
“member” and “supporter” held the same meaning.
While the foregoing inconsistency is sufficient to affirm the IJ’s adverse
credibility finding, Wang, 352 F.3d at 1259, other grounds – such as Singh’s
conflicting responses as to when he was first attacked and how many times he was
attacked – are also supported by substantial evidence.
2. Singh’s claims for withholding of removal and CAT protection were
properly denied. When an applicant cannot demonstrate eligibility for asylum, he
“necessarily fails to carry the greater burden of establishing eligibility for
withholding of removal.” Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir.
2017). The IJ’s adverse credibility determination barring Singh’s asylum claim
therefore bars his withholding of removal claim. Moreover, an alien’s CAT claim
fails where, as here, it is premised on the same bases that the BIA found not
credible in his asylum claim. Id.PETITION FOR REVIEW DENIED.