Singh Masi v. Garland

Case: 21-60458 Document: 00516342672 Page: 1 Date Filed: 06/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 3, 2022
No. 21-60458
Lyle W. Cayce
Clerk
Kamaljeet Singh Masi,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 602 089
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Kamaljeet Singh Masi, a native and citizen of India, petitions for
review of a decision of the Board of Immigration Appeals. The BIA upheld
the Immigration Judge’s denial of Singh Masi’s application for asylum,
withholding of removal, and relief under the Convention Against Torture.
Singh Masi advances four arguments on appeal.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60458 Document: 00516342672 Page: 2 Date Filed: 06/03/2022
No. 21-60458
First, Singh Masi argues that the Immigration Judge improperly relied
on the “Third Country Transit Bar.” 8 C.F.R. § 1208.13(c)(4). When the IJ
denied Singh Masi’s claim, the rule was still in effect. The rule was vacated
shortly after the IJ denied his claim but before the BIA considered his appeal.
See Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 59 (D.D.C.
2020), appeal dismissed as moot sub nom. I.A. v. Garland, No. 20-5271, 2022
WL 696459 (D.C. Cir. Feb. 24, 2022). The BIA did not base its decision on
the Third Country Transit Bar, presumably because it realized the rule was
no longer in effect. In fact, it did not even mention the rule. “Our review
considers the IJ’s reasoning only insofar as the BIA’s decision incorporated
it.” Tabora Gutierrez v. Garland, 12 F.4th 496, 501 (5th Cir. 2021). While the
IJ relied on the Third Country Transit Bar, the BIA did not, so the rule is
irrelevant to this appeal.
Second, Singh Masi argues that the BIA should have granted him
“past-persecution only asylum,” or “humanitarian asylum.” He argues that
even if the BIA were right that he failed to show a well-founded fear of future
persecution, his past persecution was severe enough to entitle him to asylum.
See, e.g., Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989); Lal v. INS, 255
F.3d 998, 1003, amended on reh’g, 268 F.3d 1148 (9th Cir. 2001) (finding
applicants were eligible for asylum based on the severity of their past
persecution). But because this claim was not presented to the BIA, we lack
jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir.
2009) (reviewing courts lack jurisdiction to review claims not raised before
the BIA); see also 8 U.S.C. § 1252(d).
Third, Singh Masi argues that the BIA’s adverse credibility
determination was in error. “[I]t is the factfinder’s duty to make
determinations based on the credibility of the witnesses.” Avelar-Oliva v.
Barr, 954 F.3d 757, 767 (5th Cir. 2020) (quoting Singh v. Sessions, 880 F.3d
220, 225 (5th Cir. 2018)). “The factfinder may rely on any inconsistency or
2
Case: 21-60458 Document: 00516342672 Page: 3 Date Filed: 06/03/2022
No. 21-60458
omission to determine that the petitioner is not credible in light of the totality
of the circumstances, regardless of whether the inconsistency or omission
goes to the heart of the applicant’s claim.” Id. (citing Ghotra v. Whitaker, 912
F.3d 284, 289 (5th Cir. 2019)); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (factors
the trier of fact may consider when making a credibility determination). We
defer to a factfinder’s “credibility determination unless, from the totality of
the circumstances, it is plain that no reasonable fact-finder could make such
an adverse credibility ruling.” Id. (quoting Singh, 880 F.3d at 225). Here, that
daunting standard has not been met because substantial evidence supported
the BIA’s determination that Singh Masi was not credible. The BIA found
several implausibilities and inconsistencies in Singh Masi’s testimony. Some
of these inconsistencies were relatively minor, like variations in his story
about how many people attacked him, how many shots he heard, where shots
struck his car, and which uncle’s house his wife was at during a shooting.
Other inconsistencies were so fundamental that it is more difficult for Singh
Masi to explain them away, including whether his wife and children fled with
him to the state of Haranya, what parts of his body were injured, and whether
his wife had been harmed since he left India. Because Singh Masi’s
“construction of the evidence is not compelled by the record,” this argument
is unavailing. Id. at 768.
Finally, Singh Masi argues that the BIA improperly paid only “token
lip service” to his Convention Against Torture claim and the evidence
supporting it. Not so. The BIA found that Singh Masi’s CAT claim suffered
from the same credibility problem as his claim for asylum. Singh Masi offered
no evidence corroborating his testimony, and that BIA had found that
testimony to be unreliable. Denying his claim on that basis was not reversible
error. See Efe v. Ashcroft, 293 F.3d 899, 907–08 (5th Cir. 2002) (affirming
denial of CAT claim where petitioner lacked credibility and failed to
3
Case: 21-60458 Document: 00516342672 Page: 4 Date Filed: 06/03/2022
No. 21-60458
“produce corroborating evidence that would clarify his inexcusably
inconsistent testimony”).
The petition for review is DENIED.
4