Gurpartap Singh v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPARTAP SINGH, No. 16-73500
Petitioner, Agency No. A200-943-733
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 18, 2018
San Francisco, California
Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.
Petitioner Gurpartap Singh, a native and citizen of India, appeals the denial
of his application for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition because substantial evidence supports the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
Immigration Appeals’ (“BIA”) decision.
The BIA found Singh’s explanations not credible on the basis of several
discrepancies and omissions. Credibility decisions are made based on the totality
of the circumstances under 8 U.S.C. § 1158(b)(1)(B)(iii) and are reviewed for
substantial evidence. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009)
(specifying the substantial evidence review standard for adverse credibility
decisions).
Substantial evidence supports the BIA’s determination that Singh’s
testimony is not credible. Although inconsistencies with his documentation may be
insufficient to negatively impact his asylum claim on their own, Singh’s failure to
mention his arrest and beatings by police during his credible fear interview in
conjunction with these documentation issues, although borderline, is sufficient to
support the BIA’s adverse credibility determination. Our precedent acknowledges
that differences in testimony given during an informal proceeding and a removal
hearing are not enough to sustain an adverse credibility determination. See Joseph
v. Holder, 600 F.3d 1235, 1242–43 (9th Cir. 2010) (finding an adverse credibility
determination unsupported by substantial evidence when based on differences
between testimony given in a bond hearing and removal hearing). Various
procedural safeguards, however, were in place during the credible fear interview
such that Singh’s failure to mention the overnight detention and altercations with
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the police is a significant omission. See Red Br. at 29–30.
Because Singh is unable to show that he is eligible for asylum, it follows that
he cannot meet the higher standard for withholding of removal. See 8 C.F.R.
§ 208.16(b); see also Kalmalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001)
(holding that a petitioner must show that he is more likely than not to be persecuted
on account of a protected ground to be eligible for withholding of removal).
Singh is not entitled to CAT relief because he failed to show that it is more
likely than not that he would be tortured if returned to India. Substantial evidence
supports the BIA’s conclusion that nothing in the record satisfies this standard.
Without credible testimony, neither the country reports nor statements from friends
and family members support the inference that his risk of facing torture in India is
more likely than not.
PETITION DENIED.
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