Singh v. Barr

18-1720
Singh v. Barr
BIA
Lurye, IJ
A200 815 954
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of December, two thousand nineteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RAYMOND J. LOHIER, JR.,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 HARMEET SINGH,
14 Petitioner,
15
16 v. 18-1720
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Jeffrey R.
28 Leist, Senior Litigation Counsel;
29 Kathleen Kelly Volkert, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 Petitioner Harmeet Singh, a native and citizen of India,
6 seeks review of a May 11, 2018, decision of the BIA affirming
7 a June 28, 2017, decision of an Immigration Judge (“IJ”)
8 denying his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Harmeet Singh, No. A200 815 954 (B.I.A. May 11, 2018),
11 aff’g No. A200 815 954 (Immig. Ct. N.Y. City June 28, 2017).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history.
14 Under the circumstances, we have considered both the IJ’s
15 and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
17 (2d Cir. 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
19 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on . . . the consistency between the
23 applicant’s or witness’s written and oral statements . . . ,
2
1 the internal consistency of each such statement, the
2 consistency of such statements with other evidence of
3 record . . . without regard to whether an inconsistency,
4 inaccuracy, or falsehood goes to the heart of the applicant’s
5 claim, or any other relevant factor.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 163–64 (2d Cir. 2008). Substantial evidence supports the
8 agency’s determination that Singh was not credible as to his
9 claim that police and members of the Akali Dal Badal party
10 beat him twice in India on account of his membership in the
11 Akali Dal Mann party.
12 The adverse credibility determination was based on
13 inconsistent statements from Singh’s credible fear interview,
14 asylum application, hearing testimony, and supporting
15 letters. See 8 U.S.C. § 1158(b)(1)(B)(iii). As an initial
16 matter, the agency did not err in relying on the record of
17 Singh’s credible fear interview because the record of the
18 interview was sufficiently reliable: the interview was
19 conducted with an interpreter, it was memorialized in a
20 typewritten question-and-answer format, the questions posed
21 were designed to elicit details of Singh’s asylum claim, and
22 Singh’s responses indicated that he understood the questions.
23 See Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir. 2009)
3
1 (requiring close scrutiny of credible fear interviews but
2 finding a record reliable when it is typewritten,
3 demonstrates that the applicant understood the questions,
4 reflects questions about past harm or fear of future harm,
5 and is conducted with an interpreter).
6 The agency reasonably found that Singh provided different
7 birthdates to an asylum officer during his credible fear
8 interview and police in Michigan during an arrest than he
9 provided in his removal proceedings. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). Singh was unable to explain the
11 inconsistencies; rather, he further impugned his credibility
12 by stating that he had not known his correct birthdate during
13 his credible fear interview, despite the fact that the
14 interviewer transcribed the purportedly correct birthdate and
15 would have had no basis to know that date if Singh had not
16 provided it. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
17 Cir. 2005) (“A petitioner must do more than offer a plausible
18 explanation for his inconsistent statements to secure relief;
19 he must demonstrate that a reasonable fact-finder would be
20 compelled to credit his testimony.” (internal quotation marks
21 omitted)).
22 The agency also reasonably relied on Singh’s inconsistent
23 descriptions of his second attack as to whether his attackers
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1 chased after him. See 8 U.S.C. § 1158(b)(1)(B)(iii). When
2 asked to explain the inconsistency, Singh repeatedly changed
3 his testimony, creating new inconsistencies that supported
4 finding him not credible. See id.; see also Majidi, 430 F.3d
5 at 80.
6 Having questioned Singh’s credibility, the agency
7 reasonably relied further on his failure to rehabilitate his
8 testimony with reliable corroborating evidence. “An
9 applicant’s failure to corroborate his or her testimony may
10 bear on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.” Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency did
14 not err in declining to credit affidavits from Singh’s parents
15 and neighbor or unsworn doctors’ notes because some of the
16 authors were interested witnesses and none were available for
17 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332 (2d
18 Cir. 2013) (“We generally defer to the agency’s evaluation of
19 the weight to be afforded an applicant’s documentary
20 evidence.”); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
21 209, 215 (B.I.A. 2010) (finding that letters from alien’s
22 friends and family were insufficient to provide “substantial
23 support” for alien’s claims because they were from interested
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1 witnesses not subject to cross-examination), overruled on
2 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
3 38 (2d Cir. 2012).
4 Given the inconsistency and corroboration findings, the
5 agency’s adverse credibility determination is supported by
6 substantial evidence.* See 8 U.S.C. § 1158(b)(1)(B)(iii).
7 That credibility determination was dispositive of asylum,
8 withholding of removal, and CAT relief because all three
9 claims were based on the same factual predicate. See Paul
10 v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
* The IJ erred by failing to provide Singh an opportunity to explain additional inconsistencies
identified in the record. See Ming Shi Xue v. B.I.A., 439 F.3d 111, 125 (2d Cir. 2006).
Nevertheless, remand would be futile because Singh’s inconsistent statements regarding his
birthdate and alleged second attack as well as his changing stories when asked to explain those
inconsistencies were more than sufficient to support the agency’s adverse credibility
determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
(holding that remand is futile when this Court can “confidently predict” that the agency would
reach the same decision absent the errors); see also Xiu Xia Lin, 534 F.3d at 165–67.
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