Dalwinder Singh v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DALWINDER SINGH, No. 08-72610
Petitioner, Agency No. A097-113-196
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2011 **
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***
Dalwinder Singh, a native and citizen of India, petitions for review of the
decision of the Board of Immigration Appeals ("BIA"), affirming the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
judge's denial of Singh's applications for asylum, withholding of removal, and
protection under the Convention Against Torture. The IJ found that Singh was not
credible, his testimony having been contradicted not only by records from the
Department of Homeland Security ("DHS") but also by information contained in
Singh's own passport. Unable to believe Singh's testimony regarding matters
material to his claims, the IJ denied his applications for relief. The BIA affirmed,
finding no error in either the IJ's reliance on the DHS records or the IJ's adverse
credibility finding. Because the factual and procedural background is familiar to
the parties, we do not recount it here. We have jurisdiction pursuant to 8 U.S.C. §
1252(a)(1), and we deny the petition for review.
Singh raises a number of issues on appeal, only two of which merit brief
discussion. First, Singh contends that the IJ improperly admitted unauthenticated
DHS computer printouts, thereby violating his due process rights. For due process
purposes, the test for admission of evidence in immigration proceedings is whether
the evidence is probative and its admission is fundamentally fair. Espinoza v. INS,
45 F.3d 308, 310 (9th Cir. 1995). Here, the printouts were clearly probative of
matters material to Singh's applications for relief, and admission of those printouts
did not make the proceedings fundamentally unfair. Indeed, Singh's counsel raised
no objection to their admission. Despite the lack of objection, the government
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proffered a foundation for admission of the printouts. The IJ concluded from the
government's proffer and his own perusal of the evidence that the printouts were
what they purported to be, namely computer records prepared and maintained in
DHS's regular course of business. Singh offered neither evidence nor argument to
the contrary. Importantly, much of the information contained in the printouts was
corroborated by other evidence in the record. With or without the DHS printouts,
the outcome of the proceedings would likely have been the same.1 As found by the
BIA, the IJ's admission of—and reliance on—the DHS printouts did not constitute
due process error.
Second, Singh contends that the IJ's adverse credibility finding is not
supported by the record. Because Singh filed his asylum application before the
May 2005 effective date of the REAL ID Act, we apply pre-REAL ID Act
standards. Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005). Under pre-
REAL ID Act law, credibility determinations are reviewed for substantial
evidence. Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010). We accord
deference to an IJ's credibility determination and will uphold an adverse credibility
finding unless the evidence compels a contrary result. Li v. Holder, 629 F.3d 1154,
1
Singh claims that his counsel was ineffective for failing to object to admission of
the DHS printouts. The BIA found—and we agree—that such claim fails for lack of
prejudice.
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1157 (9th Cir. 2011). "Major inconsistencies on issues material to [an] alien's
claim of persecution constitute substantial evidence supporting an adverse
credibility determination." Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).
Here, the IJ based his adverse credibility finding in large part on
discrepancies in the evidence regarding Singh's whereabouts during the time of his
purported persecution in India. In particular, Singh's passport and DHS computer
printouts placed Singh in Panama when he claimed to have been in India. When
confronted with the contradictory evidence, Singh was unable to provide a
plausible explanation for the inconsistencies. Furthermore, having carefully
observed Singh when he was asked about the evidence placing him in Panama, the
IJ saw no shock or surprise and otherwise found "nothing in his demeanor . . . to
suggest that he was, in fact, telling the truth in his own testimony."
Because Singh did not offer a reasonable and plausible explanation for the
discrepancies in the evidence, discrepancies that went to the heart of each of his
claims, the discrepancies constituted substantial evidence supporting the IJ's
adverse credibility finding. We must defer to the IJ's adverse credibility finding as
the record does not compel a contrary conclusion.
PETITION DENIED.
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