Filed: Jun. 12, 2020
Latest Update: Jun. 12, 2020
Summary: 18-362 Singh v. Barr BIA Segal, IJ A087 997 707 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 NOTATIO
Summary: 18-362 Singh v. Barr BIA Segal, IJ A087 997 707 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..
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18-362
Singh v. Barr
BIA
Segal, IJ
A087 997 707
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 12th day of June, two thousand twenty.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 TAJINDER SINGH,
14 Petitioner,
15
16 v. 18-362
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Pardeep Singh Grewal, Castro
24 Valley, CA.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Cindy S. Ferrier,
28 Assistant Director; Kimberly A.
1 Burdge, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Tajinder Singh, a native and citizen of India,
10 seeks review of a January 9, 2018 reissued decision of the
11 BIA affirming an April 28, 2015 decision of an Immigration
12 Judge (“IJ”) denying Singh’s application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Tajinder Singh, No. A 087 997
15 707 (B.I.A. Jan. 9, 2018), aff’g No. A 087 997 707 (Immig. Ct.
16 N.Y. City Apr. 28, 2015). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
20 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d 67, 76
23 (2d Cir. 2018) (reviewing adverse credibility determination
2
1 under a substantial evidence standard).
2 The governing REAL ID Act credibility standard provides
3 as follows:
4 Considering the totality of the circumstances, and
5 all relevant factors, a trier of fact may base a
6 credibility determination on the demeanor, candor,
7 or responsiveness of the applicant or witness, . .
8 . the consistency between the applicant’s or
9 witness’s written and oral statements . . . , the
10 internal consistency of each such statement, the
11 consistency of such statements with other evidence
12 of record . . . , and any inaccuracies or falsehoods
13 in such statements, without regard to whether an
14 inconsistency, inaccuracy, or falsehood goes to the
15 heart of the applicant’s claim, or any other
16 relevant factor.
17
18 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer . . . to an IJ’s
19 credibility determination unless . . . it is plain that no
20 reasonable fact-finder could make such an adverse credibility
21 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
22 2008) (per curiam); accord Hong Fei
Gao, 891 F.3d at 76.
23 Substantial evidence supports the agency’s adverse
24 credibility determination.
25 The multiple inconsistencies among Singh’s testimony and
26 documentary evidence provide substantial evidence for the
27 adverse credibility determination. First, Singh’s testimony
28 regarding the dates and locations of persecution he claimed
3
1 to have experienced in India was inconsistent with letters
2 from his parents and a childhood friend. In particular, the
3 letters recounted that Singh was beaten in his family home on
4 December 3, 2009, but Singh testified that this beating
5 occurred in November 2007 and denied that he was beaten at
6 all on December 3, 2009.
7 Singh argues that the IJ erred by not providing him an
8 opportunity to explain these discrepancies and further
9 contends that this error was compounded by what he
10 characterizes as the IJ’s awareness that Singh’s counsel was
11 ineffective. But Singh’s arguments relating to ineffective
12 assistance of counsel are not properly before us, as Singh
13 did not exhaust them before the agency. See Arango-Aradondo
14 v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (petitioner must first
15 raise ineffective assistance of counsel claims with the BIA).
16 And no opportunity to explain discrepancies is required,
17 inter alia, where an individual’s testimony is “dramatically
18 different” from the documentary evidence. See Ming Shi Xue
19 v. BIA,
439 F.3d 111, 114–15 (2d Cir. 2006) (IJ may rely on
20 inconsistencies not brought to asylum seeker’s attention when
21 inconsistencies are “dramatic” and “sufficiently conspicuous
4
1 and central to the applicant’s claim as to be self-evident”).
2 Second, Singh’s testimony regarding the dates and
3 duration of hospital stays was inconsistent with letters from
4 the hospital, and he failed to provide a convincing
5 explanation for these discrepancies despite receiving an
6 opportunity to do so. See Majidi v. Gonzales, 430 F.3d 77,
7 80 (2d Cir. 2005) (“A petitioner must do more than offer a
8 plausible explanation for his inconsistent statements to
9 secure relief; he must demonstrate that a reasonable fact-
10 finder would be compelled to credit his testimony.” (internal
11 quotation marks and citations omitted)). The medical letters
12 described a six-day hospitalization, but Singh initially
13 testified that he was hospitalized for only one or two days;
14 when questioned about this discrepancy, Singh changed his
15 testimony, but ultimately maintained that the letters were
16 incorrect without providing any reason for this error. The
17 IJ reasonably relied on Singh’s inability to explain these
18 inconsistencies. See
Majidi, 430 F.3d at 79–80.
19 Third, we defer to the IJ’s demeanor finding, which adds
20 further support for the adverse credibility determination.
21 See Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 113 (2d
5
1 Cir. 2005) (deferring to demeanor finding “in recognition of
2 the fact that the IJ’s ability to observe the witness’s
3 demeanor places her in the best position to evaluate whether
4 apparent problems in the witness’s testimony suggest a lack
5 of credibility or, rather, can be attributed to an innocent
6 cause such as difficulty understanding the question”). The
7 record reflects that Singh gave non-responsive answers to
8 questions from counsel and the IJ, and the IJ identified
9 specific examples of Singh’s testimony to support her
10 determination.
11 Finally, the agency reasonably concluded that Singh’s
12 documentary evidence did not rehabilitate his credibility.
13 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
14 (“An applicant’s failure to corroborate his . . . testimony
15 may bear on credibility, because the absence of corroboration
16 in general makes an applicant unable to rehabilitate
17 testimony that has already been called into question”). As
18 discussed previously, the letters Singh submitted were
19 inconsistent with his testimony regarding the dates of
20 particular incidents and the duration of his hospital stays.
21 Further, an additional letter from Singh’s political party
6
1 did not address, and thus did not corroborate, his allegations
2 of past harm.
3 Given the inconsistencies between Singh’s testimony and
4 his documentary evidence, as well the demeanor finding and
5 the lack of reliable corroboration, substantial evidence
6 supports the adverse credibility determination. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
8 Singh’s claims were all based on the same factual predicate,
9 the adverse credibility determination is dispositive of
10 asylum, withholding of removal, and CAT relief. See Paul v.
11 Gonzales,
444 F.3d 148, 156–57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
7
