Singh v. Garland

20-2651
Singh v. Garland
BIA
Conroy, IJ
A205 585 976
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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 9th day of May, two thousand twenty-
4 three.
5
6 PRESENT:
7 SUSAN L. CARNEY,
8 STEVEN J. MENASHI,
9 ALISON J. NATHAN,
10 Circuit Judges.
11 _____________________________________
12
13 HARMINDER SINGH,
14 Petitioner,
15
16 v. 20-2651
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Anas J. Ahmed, Esq., Pannun the Firm, P.C.,
24 Jackson Heights, NY.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
2 General; Anthony P. Nicastro, Assistant
3 Director; Kristen H. Blosser, Trial Attorney,
4 Office of Immigration Litigation, United
5 States Department of Justice, Washington,
6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Harminder Singh, a native and citizen of India, seeks review of a
11 July 16, 2020, decision of the BIA affirming a June 29, 2018, decision of an
12 Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re
14 Harminder Singh, No. A 205 585 976 (B.I.A. July 16, 2020), aff’g No. A 205 585 976
15 (Immig. Ct. N.Y. City June 29, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
19 review are well established. “[T]he administrative findings of fact are conclusive
20 unless any reasonable adjudicator would be compelled to conclude to the
21 contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, we review the agency’s
2
1 decision for substantial evidence and must defer to the factfinder’s findings based
2 on such relevant evidence as a reasonable mind might accept as adequate to
3 support a conclusion. . . . By contrast, we review legal conclusions de novo.”
4 Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation marks omitted);
5 see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
6 An applicant has the burden to establish his eligibility for withholding of
7 removal and CAT protection. 1 See 8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 1208.16(b),
8 (c)(2). “The testimony of the applicant may be sufficient to sustain the applicant’s
9 burden without corroboration, but only if the . . . testimony is credible, is
10 persuasive, and refers to specific facts sufficient to demonstrate that the applicant
11 is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C). “In order for
12 an alien’s testimony to carry the day on its own, the statute requires the alien to
13 satisfy the trier of fact on all three counts—showing his testimony is credible, is
14 persuasive, and refers to specific facts sufficient to demonstrate that the applicant
15 is a refugee” entitled to relief from removal. Garland v. Ming Dai, 141 S. Ct. 1669,
1 Singh’s asylum claim is both unexhausted and abandoned because he did not
argue before the BIA or here that the IJ erred in rejecting his asylum claim as
untimely, and we therefore do not consider that claim. See Gui Yin Liu v. INS, 508
F.3d 716, 723 n.6 (2d Cir. 2007).
3
1 1680 (2021) (internal quotation marks omitted); see also id. at 1680–81 (explaining
2 that credibility and persuasiveness “are closely bound concepts” and that a person
3 who testifies sincerely may be credible but not persuasive when that person’s
4 testimony is contradicted by other evidence).
5 The IJ concluded that Singh’s testimony was generally credible but not
6 sufficiently persuasive to satisfy his burden of proof because of contradictions and
7 implausibility. Although Singh now argues that his testimony was sufficient to
8 satisfy his burden without additional corroboration, he has not challenged the
9 specific findings underlying the IJ’s ruling that the testimony was insufficiently
10 persuasive on its own. This issue has thus been abandoned. See Gui Yin Liu, 508
11 F.3d at 723 n.6; Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
12 sufficiently argued in the briefs are considered waived and normally will not be
13 addressed on appeal.”).
14 When an IJ determines that corroboration is required, “such evidence must
15 be provided unless the applicant does not have the evidence and cannot
16 reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also Wei Sun v.
17 Sessions, 883 F.3d 23, 28 (2d Cir. 2018) (“[I]n some cases . . . an applicant may be
18 generally credible but his testimony may not be sufficient to carry the burden of
4
1 persuading the fact finder of the accuracy of his claim of crucial facts if he fails to
2 put forth corroboration that should be readily available.”). We may not reverse
3 the agency’s decision regarding the availability of corroborating evidence unless
4 we decide “that a reasonable trier of fact is compelled to conclude that such
5 corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4). “[W]hen an IJ
6 determines that the applicant failed to meet his burden of proof based on the
7 failure to provide corroborating evidence, the IJ should perform the following
8 analysis: (1) point to specific pieces of missing evidence and show that it was
9 reasonably available, (2) give the applicant an opportunity to explain the omission,
10 and (3) assess any explanation given.” Wei Sun, 883 F.3d at 31.
11 Singh argues that the agency failed to follow these requirements when it
12 relied on his failure to produce contemporaneous medical records from his 2011
13 and 2012 hospitalizations in finding that he failed to satisfy his burden. But the
14 IJ identified specific evidence that was missing, and Singh testified that he could
15 obtain those documents. We read the agency’s decision as considering and
16 rejecting Singh’s explanation that he did not know that additional records would
17 be necessary. See id. (“[T]he alien bears the ultimate burden of introducing
18 [corroborating] evidence without prompting from the IJ.” (quoting Chuilu Liu v.
5
1 Holder, 575 F.3d 193, 198 (2d Cir. 2009)). Given Singh’s admission that he could
2 obtain the omitted documents, the record does not compel the conclusion that
3 those documents were not available. 8 U.S.C. § 1252(b)(4). We decline to
4 consider Singh’s argument, offered for the first time in his brief here, that the clinic
5 at which he was treated does not maintain this type of record; he did not provide
6 that explanation to the agency, and such statements by counsel are not evidence.
7 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–20 (2d Cir. 2007) (explaining
8 that we generally consider only those arguments raised before the BIA);
9 Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013) (“[T]he arguments of counsel
10 are not evidence.”).
11 The agency did not otherwise err in assigning limited weight to the
12 documentary evidence Singh submitted. See Y.C. v. Holder, 741 F.3d 324, 332 (2d
13 Cir. 2013) (“We generally defer to the agency’s evaluation of the weight to be
14 afforded an applicant’s documentary evidence.”); Shunfu Li v. Mukasey, 529 F.3d
15 141, 149 (2d Cir. 2008) (“[W]e afford IJs considerable flexibility in determining the
16 authenticity of . . . documents from the totality of the evidence.”). None of the
17 authors of letters and affidavits in the record were available for cross-examination,
18 and at least some were interested parties. See Likai Gao v. Barr, 968 F.3d 137, 149
6
1 (2d Cir. 2020) (concluding that “the IJ acted within her discretion in according . . .
2 little weight” to letters from the applicant’s wife and friend “because the
3 declarants (particularly [the applicant’s] wife) were interested parties and neither
4 was available for cross-examination”). Furthermore, Singh does not dispute that
5 many of these documents were prepared by a person who simultaneously
6 translated the declarants’ oral statements into English, and there is no evidence
7 establishing the accuracy of the translation, as is required by the Immigration
8 Court Practice Manual. See Immigration Court Practice Manual, ch. 3.3,
9 https://www.justice.gov/eoir/reference-materials/ic/chapter-3/3 (last visited Apr.
10 19, 2023) (“An affidavit or declaration in English by a person who does not
11 understand English must include a certificate of interpretation stating . . . that the
12 interpreter is competent to translate the language of the document, and that the
13 interpretation was true and accurate to the best of the interpreter’s abilities.”); cf.
14 8 C.F.R. § 1003.33 (requiring a comparable certification for translated documents).
15 Other documents in the record failed to corroborate the alleged incidents of
16 persecution.
17 Contrary to his argument, Singh had an opportunity to authenticate his
18 documentary evidence after the Government objected to the evidence on that
7
1 ground and the IJ instructed his attorney that he could address authenticity during
2 direct examination. Moreover, to the extent that he argues that he lacked notice
3 that he should provide evidence of the oral translations’ accuracy, as noted earlier,
4 certification is specifically required by the Immigration Court Practice Manual,
5 and Singh carried the burden to provide reliable corroborating evidence without
6 prompting from the IJ. Immigration Court Practice Manual, ch. 3.3; Wei Sun, 883
7 F.3d at 31.
8 In sum, the agency did not err in concluding that Singh failed to carry his
9 burden to show that he has suffered past persecution or “will more likely than
10 not” be persecuted or tortured in the future because the record does not compel
11 the conclusion that his corroborating evidence was reliable or that additional
12 corroborating evidence was unavailable. 8 U.S.C. § 1252(b)(4); 8 C.F.R.
13 §§ 1208.16(b)–(c), 1208.17; see also 8 U.S.C. § 1231(b)(3)(A); Wei Sun, 883 F.3d at 28.
14 For the foregoing reasons, the petition for review is DENIED. All pending
15 motions and applications are DENIED and stays VACATED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe,
18 Clerk of Court
8