Singh v. Garland

20-2731
Singh v. Garland
BIA
Conroy, IJ
A205 935 339
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of November, two thousand twenty-
5 two.
6
7 PRESENT:
8 GERARD E. LYNCH,
9 MICHAEL H. PARK,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 JASWINDER SINGH,
15 Petitioner,
16
17 v. 20-2731
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dalbir Singh, Esq., New York, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Leslie McKay,
28 Acting Assistant Director;
1 Christin M. Whitacre, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Jaswinder Singh, a native and citizen of
11 India, seeks review of a July 21, 2020, decision of the BIA
12 affirming a September 4, 2018, decision of an Immigration
13 Judge (“IJ”) denying asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”).
15 Jaswinder Singh, No. A205 935 339 (B.I.A. July 21, 2020),
16 aff’g No. A205 935 339 (Immig. Ct. N.Y. City Sept. 4, 2018).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history.
19 We have reviewed the IJ’s decision as supplemented by
20 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). The applicable standards of review are well
22 established. “[T]he administrative findings of fact are
23 conclusive unless any reasonable adjudicator would be
24 compelled to conclude to the contrary.” 8 U.S.C.
2
1 § 1252(b)(4)(B). “Accordingly, we review the agency’s
2 decision for substantial evidence and must defer to the
3 factfinder’s findings based on such relevant evidence as a
4 reasonable mind might accept as adequate to support a
5 conclusion. . . . By contrast, we review legal conclusions de
6 novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)
7 (internal quotation marks omitted); see also Hong Fei Gao v.
8 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
9 credibility determination “under the substantial evidence
10 standard”).
11 A factfinder “may base a credibility determination on
12 the . . . consistency between the applicant’s . . . written
13 and oral statements,” “the internal consistency of each such
14 statement,” and “the consistency of such statements with
15 other evidence of record,” and may do so “without regard to
16 whether an inconsistency, inaccuracy, or falsehood goes to
17 the heart of the applicant’s claim, or any other relevant
18 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
19 an IJ’s credibility determination unless . . . it is plain
20 that no reasonable fact-finder could make such an adverse
21 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
3
1 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
2 Substantial evidence supports the adverse credibility
3 determination. Singh alleged that members of the Congress
4 Party attacked and threatened him because of his membership
5 and involvement in the Shiromani Akali Dal (Amritsar) Party
6 (“Mann Party”). The agency reasonably relied on
7 discrepancies between Singh’s testimony and his statements at
8 an initial interview with a Customs and Border Patrol officer.
9 See 8 U.S.C. § 1158(b)(1)(B)(iii). As an initial matter, the
10 agency did not err in concluding that the interview record
11 was reliable. The interview was memorialized in a type-
12 written document that appears to be a verbatim recitation of
13 81 questions and answers. The interview was conducted
14 through a Punjabi interpreter who translated questions
15 designed to elicit the details of Singh’s asylum claim.
16 Singh stated that he understood the questions, provided
17 detailed answers, and initialed each page of the interview
18 record indicating that it had been read back to him. There
19 was no indication that Singh was reluctant to reveal
20 information. See Ming Zhang v. Holder, 585 F.3d 715, 725 (2d
21 Cir. 2009) (discussing “the hallmarks of reliability” used to
4
1 assess border and credible fear interviews).
2 The inconsistencies between Singh’s statements at that
3 interview and his subsequent statements support the agency’s
4 adverse credibility determination. First, at the interview,
5 Singh stated that he was assaulted in 2008 and had not
6 recently been attacked. But in later testimony, Singh said
7 that he was also attacked in 2012, six months before the
8 interview. Second, Singh stated in his interview that his
9 father was present during the 2008 incident, but his later
10 testimony stated that he was alone in that incident. Third,
11 in his interview, Singh denied that he was affiliated with
12 the Mann Party, but he later testified that he worked for the
13 Party. These direct contradictions about the alleged
14 persecution provide substantial evidence for the adverse
15 credibility determination. See Xian Tuan Ye v. Dep't of
16 Homeland Sec., 446 F.3d 289, 294 (2d Cir. 2006) (“Where the
17 IJ’s adverse credibility finding is based on specific
18 examples in the record of inconsistent statements . . . about
19 matters material to [the petitioner’s] claim of persecution
20 . . . a reviewing court will generally not be able to conclude
21 that a reasonable adjudicator was compelled to find
5
1 otherwise.” (citation omitted)).
2 The agency was not required to accept Singh’s explanation
3 that his interpreter during the border interview spoke a
4 dialect he did not understand because he confirmed at the
5 interview that he understood the questions, and his answers
6 were responsive. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
7 Cir. 2005) (“A petitioner must do more than offer a plausible
8 explanation for his inconsistent statements to secure relief;
9 he must demonstrate that a reasonable fact-finder would be
10 compelled to credit his testimony.” (cleaned up)). Singh
11 argues that the agency erred in finding inconsistency in the
12 timing of attacks because he did not consider the 2012 attack
13 to be recent at the time of his interview. In addition to
14 failing to exhaust this argument, the record reflects that
15 Singh said there were no recent attacks after addressing an
16 assault that occurred five years before the 2013 border
17 interview. Accordingly, his explanation does not compel a
18 conclusion contrary to the agency’s. See id.19 Finally, Singh does not challenge the agency’s conclusion
20 that his corroborating evidence did not rehabilitate his
21 testimony. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
6
1 n.1 (2d Cir. 2005) (deeming abandoned issues not raised in
2 the petitioner’s brief). Moreover, the agency did not err
3 because “[a]n applicant’s failure to corroborate his . . .
4 testimony may bear on credibility, because the absence of
5 corroboration in general makes an applicant unable to
6 rehabilitate testimony that has already been called into
7 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
8 2007). The agency reasonably afforded minimal weight to
9 affidavits from Singh’s family members as they were written
10 by interested parties who were not available for cross
11 examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d
12 Cir. 2013) (“We generally defer to the agency’s evaluation of
13 the weight to be afforded an applicant’s documentary
14 evidence.”). Although Singh provided a death certificate to
15 support his testimony that his brother was found dead after
16 being arrested by officers looking for Singh, the certificate
17 did not rehabilitate Singh’s claim because it did not confirm
18 the circumstances or cause of death.
19 In sum, the inconsistencies and lack of reliable
20 corroboration constitute substantial evidence for the adverse
21 credibility determination. See Xiu Xia Lin, 534 F.3d at 167;
7
1 Biao Yang, 496 F.3d at 273. That determination is
2 dispositive because asylum, withholding of removal, and CAT
3 relief were all based on the same factual predicate. See
4 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
8