Simarjit Singh v. Sally Q. Yates

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0074n.06
Nos. 15-4332/16-3585
FILED
Jan 26, 2017
UNITED STATES COURTS OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
SIMARJIT SINGH, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
SALLY Q. YATES, Acting Attorney General of the ) BOARD OF IMMIGRATION
United States, ) APPEALS
)
Respondent. )
)
BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Simarjit Singh is a native and citizen of India who
entered the United States in 2010 without inspection. He applied, unsuccessfully, for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT). His
appeal to the Board of Immigration Appeals (BIA) was also unsuccessful and he now petitions
for review of the BIA’s final order of removal. He separately seeks review of the BIA’s denial
of his motion to reopen his removal proceedings for administrative closure. We DENY both
petitions.
I
A
Singh is a member of the Sikh faith and was born into a “politically active family” in
Punjab, India. A.R. 343. He entered the United States without inspection or parole in August
2010. After a credible-fear interview, the Department of Homeland Security (DHS) began
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removal proceedings. Singh conceded removability, but requested asylum, withholding of
removal, and protection under the CAT.
Singh’s asylum application centered on his joining and actively participating in the
Shiromani Akali Dal Amritsar Party (Akali Dal), a Sikh-based political party in India. Singh
claims that as a result of his activities with Akali Dal (which included attending rallies and
postering), he was attacked twice by members of the Congress Party, first in October 2009 and
again in March 2010. His asylum application asserted that on the first occasion, he was stopped
by six or seven unidentified persons whom he recognized as Congress Party members, who told
him to join their party. When he refused, they fired a rifle close to him, prompting him to
abandon his motorbike and flee. Singh’s application asserted that on the second occasion, he
was confronted by Congress Party members while he was at a party in a park with friends. After
the Congress Party members began shooting rifles in the air, he and his friends fled. Singh
asserted that he could not obtain protection from local police, who were bribed by the Congress
Party. After the second incident, Singh fled India by plane to Vietnam in June 2010 and took a
boat to Mexico before entering the United States.
Over a year after making his first application, Singh filed an amended application
changing his story regarding the two incidents. In his original statements, these incidents ended
with his running away, but the amended application describes far more serious encounters,
including that Singh was confronted by Congress Party member Kartar Singh (Kartar), who
warned Singh that he would face “dire consequences” if he refused to join the Congress Party;
that Kartar was among the group of six or seven who first stopped Singh while he rode his
motorbike; that Singh did not flee after the rifle was fired, but was rather held down and beaten
by the group with their bare hands and sticks; that Singh lost consciousness and later awoke at
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home and was treated by a village nurse; that local police refused to accept his report against
Kartar, noting that Kartar had already made a report against Singh; and that after leaving the
police station, two of Singh’s attackers approached him and demanded he join the Congress
Party. Regarding the second incident in the park, the amended application states it occurred in
late March and that although many of Singh’s friends fled, he was grabbed by the Congress Party
members, beaten, and told that he had two months to join their party or else he would be killed
and his house destroyed. Singh then fled Punjab and went to Delhi with his father. In his
amended application, Singh asserts that he left India in June 2010, and traveled through
Bangkok, Vietnam, Moscow, Cuba, Paris, Guatemala, and Mexico en route to the United States,
which he entered less than two months after leaving India. He explained that his account of his
travel changed after he saw films on the Internet featuring those places, which he recognized as
places he had been to on his journey to this country.
After Singh testified at his asylum hearing, the immigration judge (IJ) commented that he
leaned toward denying Singh’s application and was considering the Government’s request that
the application be held frivolous. As potential grounds for such a finding, the IJ noted over a
dozen implausible inconsistencies between Singh’s applications and documentation, his
testimony, and his statements to an asylum officer. Among these inconsistencies were
(1) whether the second incident at the park happened in the first or final week of March 2010
(with Singh eventually admitting he did not know when in March the incident happened),
(2) Singh’s failure to mention his adversary Kartar’s presence at the March incident in his
application followed by testimony that Kartar was indeed present, (3) the submission of a
doctor’s report that misstated Singh’s age and contradicted his testimony that he never saw a
doctor in connection with the attacks, and (4) the failure of a local elected official’s affidavit to
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vouch for Singh’s membership in Akali Dal (instead merely noting his family’s support for the
party).
The IJ allowed Singh a continuance to explain these and other inconsistencies,
specifically to present proper documentation corroborating his story. At a subsequent hearing
over seven months later, Singh appeared without additional documentation, explaining that he
could not obtain it because his father, a farmer, had been hospitalized for months following a car
accident and was otherwise busy with the growing season. Singh did not, however, provide
documentation confirming his father’s accident or hospitalization, although he stated it was the
subject of an Internet-available news article. Singh further explained that he was unable to
obtain corroborating documentation through anyone else in India. The IJ continued the hearing
until February 2014 so that Singh’s father could be discharged from the hospital and send the
documentation. At the next hearing, Singh still had not submitted additional documentation and
rested his case on the record.
The IJ denied Singh’s application as to each claim, held his asylum application to be
deliberately frivolous, and ordered his removal. In his order, the IJ found that Singh was not
credible “about anything” and that his claims were made up “out of nothing.” Order, A.R.
71. With regard to asylum, the IJ concluded that Singh’s total lack of credibility meant that he
could not satisfy the definition of a refugee, particularly because he could not show past
persecution.1 Acknowledging the seriousness of a frivolous-application finding, the IJ
specifically found that based on numerous inconsistencies, Singh lied about his membership in
1
Asylum may be granted to refugee aliens. 8 U.S.C. § 1158(b)(1)(A). A refugee is one “who is unable or
unwilling to return to, and is unable or unwilling to avail himself . . . of the protection of, [his native] country
because of persecution or a well-founded fear of persecution on account of . . . membership in a particular social
group, or political opinion.” Id. at § 1101(a)(42)(A). An applicant bears the burden of establishing his eligibility for
asylum, either through his own credible testimony or with corroborating evidence. Id. at § 1158(b)(1)(B)(i)–(ii).
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Akali Dal and about the violent incidents with Congress Party members, and that both lies were
material to his claim for asylum.
With regard to Singh’s claim for withholding of removal, the IJ noted that Singh could
not meet the lower burden of proof for asylum and thus could not meet his burden for
withholding of removal.2 See Mohammed v. Keisler, 507 F.3d 369, 372 (6th Cir. 2007). Finally,
with regard to Singh’s CAT claim, the IJ noted that Singh had failed to prove his membership in
Akali Dal and prior harm–much less that such harm was instigated by or consented to by Indian
government officials–and thus failed to meet his burden on that claim as well.3 Further, the IJ
found that if removed to India, Singh could avoid danger by relocating within the country.
On appeal, the BIA affirmed the IJ’s adverse-credibility determination, finding that it was
not “clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3)(i). The BIA noted that the IJ’s
determination was “based on specific, cogent reasons, including discrepancies and omissions
between the respondent’s testimony, his application, and the documentary evidence” and cited
the inconsistencies mentioned in the IJ’s order, including the filing of a doctor’s note when Singh
claimed not to have received medical attention and his inconsistency on what countries he
traveled through on his way to the United States. A.R. 4. Singh did not, the BIA found, present
convincing arguments on appeal sufficient to disturb the IJ’s finding. In response to Singh’s
claim that the inconsistencies were relatively minor and did not go to the heart of his asylum
2
An alien may not be removed to his native country if his “life or freedom would be threatened in
that country because of [his] . . . membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). An alien has the burden of demonstrating a “clear probability” of persecution if he is removed to
his native country. Mohammed, 507 F.3d at 372. This more-likely-than-not burden exceeds the “well-founded fear”
burden applicable to asylum claims. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (holding that
demonstrating asylum eligibility does not require a showing that persecution is more likely than not).
3
An alien may not be removed to his native country if he establishes that it is more likely than not that he
will be tortured there. 8 C.F.R. § 1208.16(c)(2). “Torture” is defined by the CAT’s implementing regulations. See
8 C.F.R. 1208.18(a). Although aliens need not demonstrate any of the five statutory grounds for asylum or
withholding-of-removal eligibility for a CAT claim, the proof required to demonstrate that torture is more likely
than not is more stringent than the proof required to demonstrate that persecution is more likely than not. See Berri
v. Gonzales, 468 F.3d 390, 397–98 (6th Cir. 2006).
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claim, the BIA noted that an adverse-credibility finding can permissibly rest on inconsistencies
that do not go to the heart of the claim. See El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.
2009).
In affirming the IJ’s denial of Singh’s asylum application, the BIA noted that Singh could
not satisfy the more stringent clear-probability-of-persecution standard required for withholding
of removal and thus affirmed that denial as well. See 8 C.F.R. § 1208.16(b); see also
Mohammed, 507 F.3d at 372. The BIA also upheld the IJ’s denial of Singh’s CAT claim because
he did not “establish that he faces a clear probability of torture in India by, at the instigation of or
with the consent or acquiescence or willful blindness of the government.” A.R. 5. See Amir v.
Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). Further, because Singh’s appeal on the CAT claim
failed to challenge the IJ’s finding that he could avoid danger by relocating, the BIA concluded
that he had waived a challenge to this finding. Finally, the BIA concluded that although it was a
close case, a preponderance of the evidence did not support the court’s finding that Singh had
knowingly and deliberately fabricated material aspects of his asylum application. See 8 C.F.R.
§ 1208.20. It accordingly sustained Singh’s appeal of the frivolousness finding. Singh filed a
petition for review from these denials.
B
After the BIA affirmed the IJ’s removal order, Singh married a United States citizen,
Cynthia Singh (Cynthia), who filed a family-based immigrant visa petition on Singh’s behalf
with the United States Citizenship and Immigration Services (USICS). The petition was
approved during the pendency of this appeal.
After his marriage to Cynthia and her filing a visa petition on his behalf, Singh moved the
BIA to reopen his removal proceeding and administratively close it, which would remove the
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regulatory bar to his seeking an unlawful-presence waiver.4 Upon an approval of the family-
based immigrant-visa petition and a grant of the motion to reopen, Singh would become eligible
to seek a provisional unlawful-presence waiver. The waiver would allow him to return to India
for consular processing of his family-based immigrant visa.5 The DHS opposed Singh’s motion
to reopen, emphasizing that Singh had not established that his marriage was bona fide, and
asserting that he was otherwise “undeserving” of reopening because of his lack of credibility in
his removal proceedings. A.R. 286–87. In its denial of Singh’s motion, the BIA noted that
because Singh’s visa petition was pending at the time, rather than granted, there was no basis for
relief from removal and further that he failed to show a strong likelihood that his marriage to
Cynthia was bona fide. Finally, it noted that its power to reopen was not a procedural cure-all
and that Singh should raise a request for prosecutorial discretion directly with the DHS. Singh
filed a separate petition for review from this denial.
II
Singh claims two categories of errors in this consolidated appeal. First, he argues that the
IJ erred in finding him incredible and that he in fact established that he was eligible for asylum,
withholding of removal, and protection under the CAT. Second, he argues that the BIA
inadequately explained its reasoning in denying his motion to reopen his case for administrative
closure, or, in the alternative, that the BIA abused its discretion in denying his motion.
4
Under prior DHS regulations, aliens subject to a final order were ineligible for provisional unlawful-
presence waivers, as were aliens in removal proceedings, “unless the removal proceedings [were] administratively
closed and ha[d] not been recalendared at the time of filing the [application for provisional unlawful-presence
waiver].” 8 C.F.R. § 212.7(e)(4)(v) (2013).
5
Even with an approved immigrant-visa petition, Singh is ineligible to adjust his status while in the United
States because he entered the country without inspection or admission. See 8 U.S.C. § 1255(a).
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A
This court reviews legal conclusions de novo, but with “deference to the BIA’s
reasonable interpretation of the statutes and regulations.” Karimijanaki v. Holder, 579 F.3d 710,
714 (6th Cir. 2009) (quoting Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009)). When the BIA
issues a reasoned decision rather than summarily affirming the IJ’s decision, we review
both. Id. The court reviews factual findings, including credibility determinations, for substantial
evidence. Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir. 2014). This is a deferential standard
and the BIA’s decision will be upheld so long as it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Marku v. Ashcroft, 380 F.3d 982, 986
(6th Cir. 2004) (quotation omitted). Administrative factual findings are “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B) (emphasis added).
An applicant bears the burden of demonstrating his eligibility for asylum. 8 U.S.C.
§ 1158(b)(1)(B)(i). Where his testimony is not “believable, consistent, and sufficiently detailed
to provide a plausible and coherent account,” he must corroborate “virtually every significant
instance of persecution” claimed. Gaye v. Lynch, 788 F.3d 519, 528 (6th Cir. 2015) (quotations
omitted). Failure to provide reasonably expected corroboration is itself grounds for denial of an
application for asylum. See id.
Immigration courts may make adverse-credibility determinations on the basis of
“any inaccuracies or falsehoods in [the applicant’s] statements, without regard to whether any
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). Credibility determinations are made on the
totality of the circumstances. Khozhaynova v. Holder, 641 F.3d 187, 193 (6th Cir. 2011).
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An adverse-credibility finding that is fatal to an alien’s asylum claim is also fatal to the alien’s
withholding-of-removal and CAT claims. See Slyusarr, 740 F.3d at 1074.
Here, the IJ found that Singh lacked credibility “about anything,” Order, A.R. 71, after
noting over a dozen inconsistencies presented by Singh, which he never explained (with
corroboration or otherwise). The BIA cited several of the major inconsistencies noted by the
IJ—including inconsistencies over Kartar’s role in the attacks, the timing of the attacks, whether
Singh received medical treatment after the attacks, and how he traveled to the United States.
Further, against Singh’s argument that these inconsistencies were minor, the BIA correctly noted
that even inconsistencies that do not reach the heart of the claim may support an adverse-
credibility finding.6 El-Moussa, 569 F.3d at 256. In reviewing the documentation that Singh did
provide, the BIA found it insufficient to rehabilitate his incredible testimony. Indeed, some of
the documents—such as the doctor’s note and the affidavit of the local official—raised more
questions than they answered.
Because the IJ’s and BIA’s decisions that Singh lacked the credibility to establish his
eligibility for asylum (including that he was ever persecuted or even a member of the political
party he claimed to be a part of) is adequately supported, it follows that he could not satisfy the
more stringent burdens of proof required for his withholding-of-removal and CAT claims.
Mohammed, 507 F.3d at 372.
B
This court has jurisdiction to review the denial of a motion to reopen. 8 U.S.C.
§ 1252(a). Because “[t]he decision to grant or deny a motion to reopen . . . is within the
6
The most striking inconsistencies, however, do go to the heart of the claim. In his first application, Singh
reported no attacks at all, just that he was threatened and fled. In his amended application, however, these incidents
resulted in his being beaten by Congress Party members, the first time to the point of unconsciousness. These
attacks are central events in Singh’s claim, and it seems highly implausible that running away versus being brutally
beaten were minor details that he misremembered or that were lost in translation in his consultations with counsel.
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discretion of the [BIA],” 8 C.F.R. § 1003.2(a), we review the BIA’s denial for abuse of
discretion. Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In
determining whether the BIA abused its discretion, we must decide “whether the denial of the
motion to reopen was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination against
a particular race or group.” Id. (internal alteration and quotation omitted).
Article III’s case-or-controversy requirement restricts the court to considering only a
“live controversy” and forecloses its consideration of moot claims. Harmon v. Holder, 758 F.3d
728, 732 (6th Cir. 2014). Because this court must analyze regulations as they now exist, a
change in regulation may moot a claim. Cf. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637,
644 (6th Cir. 1997) (discussing mootness due to intervening statutory amendment). Mootness is
shown when even a favorable judicial decision will not redress the injury claimed. See Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477 (1990).
Singh has been approved for an immigrant visa, but because he is unlawfully present, he
is unable to adjust his status while in the United States. Instead, he is required to adjust his status
through consular processing in India and requires a provisional waiver of unlawful presence to
do so. 8 U.S.C. § 1255(a). He sought reopening and administrative closure of his removal case
in order to qualify for the waiver.7
Under a prior DHS regulation, Singh was ineligible for a waiver because he was subject
to a final order of removal; unless the proceedings were reopened (making them no longer
“final”) and then “administratively closed and . . . not . . . recalendared at the time of filing the
[application for provisional unlawful-presence waiver]” (making them no longer “pending”),
Singh was ineligible to apply for a waiver. 8 C.F.R. § 212.7(e)(4)(v) (2013). The Government
7
See notes 4 and 5 and accompanying text.
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argues that Singh’s pursuit of this relief on appeal is moot due to intervening regulatory changes
regarding eligibility for a provisional unlawful-presence waiver. The amended regulation
provides Singh with a new avenue to become eligible for a waiver that does not require that the
final order be set aside. He may now apply to USICS for consent to reapply for admission and
then seek a waiver.8 Singh acknowledges this, but asserts that the amendment merely opens up
an alternative avenue for him to obtain the ultimate relief he seeks—to become eligible for a
waiver—and thus the change does not moot his claim. The new regulation does not on its face
rule out the old practice, but it does change the landscape for petitioners in Singh’s position, who
no longer must obtain relief from the final order.9
In any event, the BIA did not abuse its discretion in denying Singh’s motion, especially
given the circumstance that the family-visa petition was not yet granted. Further, as the
Government points out, the amended regulation has obviated the need to seek reopening by
allowing for an application for consent to reapply for admission, even when there is a final
removal order. Thus, even were we to remand the motion to reopen for reconsideration, the BIA
would have additional cause to deny it.
III
For the foregoing reasons, Singh’s petitions are DENIED.
8
An alien who is “subject to an administratively final order of removal” is no long ineligible for a
provisional unlawful-presence waiver if he “has already filed and USICS has already granted, before [he] applies for
a . . . waiver . . . , an application for consent to reapply for admission . . . .” 8 C.F.R. § 212.7(e)(4)(iv) (2016).
9
See 8 C.F.R. § 212.7(e)(4)(iii) (2016). This provision provides that “an alien is ineligible for a provisional
unlawful presence waiver . . . if . . . [t]he alien is in removal proceedings, in which no final order has been entered,
unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the
application for a provisional unlawful presence waiver . . . .” (emphasis added).
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