Singh v. Barr

18-1496
Singh v. Barr
BIA
Tsankov, IJ
A208 179 126
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 30th day of September, two thousand twenty.
PRESENT:
ROSEMARY S. POOLER,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
SUKHWINDER SINGH,
Petitioner,
v. 18-1496
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
New York, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General;
Brianne Whelan Cohen, Senior
Litigation Counsel; Mona Maria
Yousif, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Sukhwinder Singh, a native and citizen of
India, seeks review of a May 2, 2018, decision of the BIA
affirming a May 22, 2017, decision of an Immigration Judge
(“IJ”) denying Singh’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Sukhwinder Singh, No. A 208 179 126 (B.I.A.
May 2, 2018), aff’g No. A 208 179 126 (Immig. Ct. N.Y. City
May 22, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018) (reviewing adverse credibility determination
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under a substantial evidence standard). “Considering the
totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on . . .
the consistency between the applicant’s or witness’s written
and oral statements . . . , the internal consistency of each
such statement, the consistency of such statements with other
evidence of record . . . , and any inaccuracies or falsehoods
in such statements, . . . or any other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s adverse credibility
determination.
First, as the agency found, there were inconsistencies
between Singh’s testimony and asylum application and internal
inconsistencies in his testimony regarding whether he was
threatened and left India in 2013 and why he traveled to Cuba.
In his asylum application, Singh alleged that he supported
the Akali Dal Amritsar Party (“SADA Party” or “Mann Party”),
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and that he fled to Cuba in January 2013 after members of the
rival Akali Dal Badal Party (“Badal Party”) threatened to
kill him. However, he testified that he did not want to
leave India before June 2014, when he alleged he was first
beaten. When confronted with this inconsistency, he changed
his testimony to say that he had left India in 2013.
His explanations were also inconsistent or not
responsive. When asked to explain why he testified that he
had not wanted to leave India before June 2014, he stated
that he went “for tourist purposes,” which did not explain
the statement in his application that he fled because Badal
Party members threatened to kill him. And his ensuing
testimony was internally inconsistent regarding whether he
was threatened in January 2013. The IJ was not required to
credit Singh’s explanation that he did not previously recall
the threat, as he was unlikely to forget a death threat that
caused him to flee to another country. See Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate
that a reasonable fact-finder would be compelled to credit
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his testimony.” (internal quotation marks and citations
omitted)).
Second, Singh’s asylum application was also inconsistent
with his initial credible fear interview, at which he also
did not mention the threat or trip to Cuba. When asked about
this inconsistency, Singh testified that he could not recall
at the time of the credible fear interview that he was
threatened. The IJ was not required to accept this
explanation. See id.
These inconsistencies regarding whether Singh was
threatened with death in January 2013 by Badal Party members
and why Singh went to Cuba are significant because they relate
to when and why Singh first started to fear harm by the Badal
Party. See id. at 79–80 (“Where the IJ’s adverse credibility
finding is based on specific examples in the record of
inconsistent statements by the asylum applicant about matters
material to his claim of persecution, . . . , a reviewing
court will generally not be able to conclude that a reasonable
adjudicator was compelled to find otherwise.”). Furthermore,
these “dramatically different” accounts of why Singh traveled
to Cuba provide substantial evidence for the adverse
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credibility determination and call into question Singh’s
credibility as a whole. See id. (determining that
“dramatically different” accounts of incident are substantial
evidence for adverse credibility determination); see also
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]
single false document or a single instance of false testimony
may (if attributable to the petitioner) infect the balance of
the alien’s uncorroborated or unauthenticated evidence.”).
Singh challenges the IJ’s reliance on the fact that he
did not provide testimony or a letter from his father’s
friend. However, as determined by the BIA, there is
sufficient support for the adverse credibility determination,
even without this finding. See Majidi, 430 F.3d at 80.
Singh also argues that the agency ignored affidavits
corroborating his claim and that the agency could have
considered his CAT claim regarding the actions of the police.
However, Singh did not exhaust these arguments before the
BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
122–23 (2d Cir. 2007) (requiring petitioner to exhaust all
issues before the BIA). Because Singh’s claims were all
based on the same factual predicate, the adverse credibility
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determination is dispositive of asylum, withholding of
removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148,
156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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