Singh v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Gurwinder Singh, No. 22-745
Agency No.
Petitioner, A209-157-555
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 18, 2023**
San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,***
District Judge.
Petitioner Gurwinder Singh, a native and citizen of India, petitions for
review of the Board of Immigration Appeals’ (BIA) order affirming the
Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief
*
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 Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
under the Convention Against Torture (CAT). We have jurisdiction under 8
U.S.C. § 1252 and deny the petition. Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th
Cir. 2013).
Credibility findings are reviewed for substantial evidence and “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B); Cui, 712 F.3d at 1336. Substantial
evidence supports the adverse credibility determination. At the credible fear
interview and in his initial declaration, Singh testified that he was twice beaten
by local police and political factions, but his attackers said nothing to him. Before
the IJ, Singh testified that his second attackers said they will kill him and
associated themselves with the first attack. When confronted with the
inconsistency, Singh blamed issues with the translator at his credible fear
interview. But at the end of his interview, he affirmed the summary of his story
and stated he understood the translator.
Singh argues that the BIA did not consider the record as a whole and that
his testimony was consistent. The BIA and IJ properly considered his credible
fear interview, declarations, and in-court testimony. See Lizhi Qiu v. Barr, 944
F.3d 837, 843 (9th Cir. 2019), overruled on other grounds by Alam v. Garland,
11 F.4th 1133 (9th Cir. 2021) (where an asylum officer’s notes have “sufficient
indicia of reliability . . . an IJ may consider inconsistencies between what a
petitioner said to an asylum officer and the petitioner’s testimony”). The BIA
found the interview reliable after Singh’s counsel failed to object to its admission.
2 22-745
And the different statements cannot be reconciled.
Singh argues that even if there was an inconsistency, it was immaterial and
trivial. But the threat allegedly made during the second attack is the only basis
by which Singh identifies his masked attackers and links the first attack to the
second. Material inconsistencies do not need to go to the heart of the petitioner’s
claim, see Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010), but this
evidence is certainly central to Singh’s claim and could properly be relied upon
by the IJ in making an adverse credibility determination.
The documentary evidence does not compel reversing the credibility
finding. Singh provided affidavits from interested parties including his father and
other members of his political party. The IJ gave no weight to the affidavits
because none of the witnesses were available for cross-examination. Petitioner
provides no additional evidence to verify these documents. See Mukulumbutu v.
Barr, 977 F.3d 924, 927 (9th Cir. 2020); Garcia v. Holder, 749 F.3d 785, 791
(9th Cir. 2014). The IJ also did not rely on the medical document provided
because the document was a summary prepared three years after the fact and bears
the words “NOT FOR MEDICO-LEGAL PURPOSE.” Substantial evidence
supports the BIA’s ruling that the additional documents do not rehabilitate
Singh’s credibility.
Without credible testimony or independent evidence, the record does not
compel reversing the denial of asylum, withholding of removal, or relief under
CAT.
3 22-745
Petition DENIED.1
1
The temporary stay of removal remains in place until issuance of the mandate.
The motion for a stay of removal (Dkt. No. 2) is otherwise denied as moot.
4 22-745