Singh v. Barr

17-729
Singh v. Barr
BIA
Cheng, IJ
A200 618 986/200 815 262
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 TO 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 9th day of May, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 KARAMJIT SINGH, SUKHWINDER KAUR,
14 Petitioners,
15
16 v. 17-729
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: David Molot, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Russell J.E.
27 Verby, Senior Litigation Counsel;
28 John D. Williams, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Karamjit Singh and Sukhwinder Kaur, natives
6 and citizens of India, seek review of a February 13, 2017,
7 decision of the BIA affirming a November 5, 2015, decision of
8 an Immigration Judge (“IJ”) denying their applications for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Karamjit Singh,
11 Sukhwinder Kaur, Nos. A 200 618 986/200 815 262 (B.I.A. Feb.
12 13, 2017), aff’g Nos. A 200 618 986/200 815 262 (Immig. Ct.
13 N.Y. City Nov. 5, 2015). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of
17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
18 adverse credibility determinations under the substantial
19 evidence standard. Hong Fei Gao v. Sessions, 891 F.3d 67,
20 76 (2d Cir. 2018). The governing REAL ID Act credibility
21 standard provides as follows:
2
1 Considering the totality of the circumstances, and
2 all relevant factors, a trier of fact may base a
3 credibility determination on . . . the consistency
4 between the applicant’s or witness’s written and
5 oral statements[,] . . . the consistency of such
6 statements with other evidence of record[,] . . .
7 and any inaccuracies or falsehoods in such
8 statements, without regard to whether an
9 inconsistency, inaccuracy, or falsehood goes to the
10 heart of the applicant’s claim, or any other
11 relevant factor.
12
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 credibility determination unless . . . it is plain that no
15 reasonable fact-finder could make such an adverse credibility
16 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
17 2008); see 8 U.S.C. § 1252(b)(4)(B). Kaur and her husband
18 Singh both premised their asylum applications on arrests and
19 mistreatment that they suffered on account of their
20 involvement with the Shiromani Akala Dal-Amritsar (“SADA”)
21 party. As discussed below, substantial evidence supports the
22 agency’s adverse credibility determination.
23 I. Kaur
24 The agency reasonably relied on the stark discrepancies
25 between Kaur’s statements during her credible fear interview
26 and her testimony at the merits hearing. See Ming Zhang v.
3
1 Holder, 585 F.3d 715, 725 (2d Cir. 2009).1 Kaur does not
2 dispute that there are significant inconsistencies between
3 her credible fear interview and her asylum application and
4 testimony. At her interview, Kaur stated: that her father
5 had a leadership role in SADA and was murdered by Congress
6 Party members in 2008; that her husband joined SADA in 2009
7 and was also attacked by the Congress Party; that she was
8 married to one of the men who had crossed the border with
9 her; that she was not personally involved with SADA; and that
10 the only harm she suffered personally was a threatening phone
11 call. By contrast, in her application and at the hearing,
12 Kaur alleged that she was also a SADA member, remained
13 politically active after her husband left India, and was
14 arrested and severely mistreated on three occasions because
15 of her political activities. Kaur said that, during the
16 credible fear interview, she omitted her own membership in
1Kaur does not challenge the reliability of the credible fear
interview record, and we find no error in the agency’s reliance on
it: Kaur had a Punjabi interpreter, the asylum officer explained
the purpose of the interview and the importance of answering
truthfully, the officer asked questions designed to elicit details
of an asylum claim, the questions and answers are memorialized in
a typewritten document, and Kaur did not demonstrate difficulty
understanding. See Ming Zhang, 585 F.3d at 724-25.
4
1 SADA and her mistreatment because she was afraid that the
2 United States officers would dislike SADA and was traumatized
3 from her experiences with the Indian police.
4 In reaching his adverse credibility finding, the IJ
5 reasonably relied on these two “materially different asylum
6 claims.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398–99 (2d
7 Cir. 2005) (“Where, as here, immigration officials have been
8 presented with two ‘materially different’ asylum claims, it
9 is entirely appropriate for a factfinder to rely on this
10 evidence as a basis for determining whether a petitioner was
11 actually persecuted in the manner asserted or is instead
12 merely reciting an account fabricated for the purposes of
13 obtaining entry into the United States.”); see also Siewe v.
14 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
15 document or a single instance of false testimony may (if
16 attributable to the petitioner) infect the balance of the
17 alien’s uncorroborated or unauthenticated evidence.”). The
18 agency also reasonably relied on Kaur’s failure to include in
19 her asylum application her father’s leadership role in the
20 SADA party and the Congress Party’s suspected role in his
21 death. See Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.
5
1 2007). These omitted facts “are ones that a credible
2 petitioner would reasonably have been expected to disclose
3 under the relevant circumstances,” Hong Fei Gao, 891 F.3d at
4 79, especially because Kaur described her father’s leadership
5 role and his suspected murder in her credible fear interview.
6 The agency was not required to accept Kaur’s explanations
7 for these inconsistencies and omissions. See Majidi v.
8 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner
9 must do more than offer a plausible explanation for his
10 inconsistent statements to secure relief; ‘he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (internal quotation marks
13 omitted)). Kaur argues that the agency failed to take into
14 account that she was traumatized by her mistreatment by the
15 Indian police. But the interview record does not reflect any
16 hesitation or difficulty answering the asylum officer’s
17 questions. See Ming Zhang, 585 F.3d at 725 (“We again reject
18 the notion that a petitioner’s claim that she was nervous and
19 distracted during the credible fear interview automatically
20 undermines or negates its reliability as a source of her
21 statements”). And Kaur provided no medical documentation to
6
1 corroborate her mental state. Moreover, her explanation that
2 she was afraid to disclose her SADA association during the
3 interview is undercut by her willingness to reveal her
4 father’s leadership position with SADA.
5 As to her failure to describe her father’s activities
6 and suspected murder in her application, Kaur testified that
7 her former lawyer told her not to include this information in
8 her asylum application because there was no proof that
9 Congress Party members killed her father. The IJ found this
10 explanation implausible. In any event, it does not resolve
11 the discrepancy because Kaur submitted her father’s death
12 certificate, and she could have simply stated in her
13 application that she and her mother believed her father was
14 killed by Congress party members but had no proof. See
15 Majidi, 430 F.3d at 80-81.
16 In light of the significant discrepancies between Kaur’s
17 credible fear interview and her application and testimony,
18 substantial evidence supports the agency’s determination that
19 she was not credible. Because Kaur’s claims were all based
20 on the same factual predicate, the adverse credibility
21 determination disposes of her requests for asylum,
7
1 withholding of removal, and CAT relief. Paul v. Gonzales,
2 444 F.3d 148, 156-57 (2d Cir. 2006).
3 II. Singh
4 Singh failed to exhaust and waived his asylum claim
5 because he did not challenge the IJ’s pretermission of his
6 asylum claim as untimely on appeal to the BIA and he does not
7 argue that issue in this Court. See Lin Zhong v. U.S. Dep’t
8 of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (exhaustion);
9 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
10 2005) (waiver). Accordingly, we will only address the
11 adverse credibility determination since it provided the basis
12 for the denial of withholding of removal and CAT relief. As
13 to the specific types of mistreatment Singh suffered while in
14 detention, the agency reasonably relied on discrepancies
15 between Singh’s asylum application and his testimony. See
16 Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)
17 (holding that although an asylum applicant does not need to
18 include every detail in an application, the agency can rely
19 on the fact that an application and testimony “described the
20 same incidents of persecution differently.”). Singh’s
21 application and hearing testimony both described being
8
1 tortured while in detention; however, at the hearing, he
2 omitted some types of torture that were described in his
3 application and testified about forms of torture that were
4 not included in the application. Singh’s explanation that
5 he thought it was sufficient to mention “torture” does not
6 resolve the inconsistencies given the specificity with which
7 he described each type of mistreatment in his application and
8 the Government attorney’s questioning about each specific
9 type of torture. See Majidi, 430 F.3d at 80-81.
10 The agency also relied on Singh’s failure to mention
11 Kaur’s mistreatment. Although Kaur’s alleged harm occurred
12 after Singh left India, he acknowledged that he was aware of
13 the events. The information was relevant given that their
14 alleged harm arose from the same activities, their SADA
15 activism. See Xiu Xia Lin, 534 F.3d at 167 (holding that
16 collateral omissions and inconsistencies may support an
17 adverse credibility ruling as long as “the cumulative effect
18 of those inconsistencies reasonably could have affected the
19 IJ’s evaluation of [petitioner’s] credibility”).
20 In sum, Singh’s varying descriptions of the mistreatment
21 he suffered, combined with his failure to include Kaur’s
9
1 mistreatment and his father-in-law’s suspected murder in his
2 application, provided substantial reason for the adverse
3 credibility ruling, which was dispositive of withholding of
4 removal and CAT relief. See Paul, 444 F.3d at 156-57.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
10