Filed: May 08, 2017
Latest Update: Mar. 03, 2020
Summary: 16-1540 Singh v. Sessions BIA Poczter, IJ A205 579 919 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
Summary: 16-1540 Singh v. Sessions BIA Poczter, IJ A205 579 919 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 N..
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16-1540
Singh v. Sessions
BIA
Poczter, IJ
A205 579 919
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of May, two thousand seventeen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 KHUSHWANT SINGH,
15 Petitioner,
16
17 v. 16-1540
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
25 York, NY.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Linda S.
29 Wernery, Assistant Director; Steven
30 K. Uejio, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Khushwant Singh, a native and citizen of India,
6 seeks review of an April 21, 2016, decision of the BIA affirming
7 a November 6, 2014, decision of an Immigration Judge (“IJ”)
8 denying Singh’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Khushwant Singh, No. A205 579 919 (B.I.A. Apr. 21, 2016),
11 aff’g No. A205 579 919 (Immig. Ct. N.Y. City Nov. 6, 2014). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales,
16 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
18 Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). The
19 agency may, “considering the totality of the circumstances,”
20 base an adverse credibility ruling on an asylum applicant’s
21 “demeanor, candor, or responsiveness,” an applicant’s
22 internally inconsistent testimony, discrepancies between an
23 applicant’s oral and written statements, and discrepancies
2
1 between an applicant’s statements and other record evidence.
2 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
3 “We defer . . . to an IJ’s credibility determination unless
4 . . . it is plain that no reasonable fact-finder could make such
5 an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
6 Substantial evidence supports the agency’s determination
7 that Singh was not credible. First, the agency reasonably
8 relied on Singh’s internally inconsistent and evasive testimony
9 regarding whether he was harmed by the Indian police. 8 U.S.C.
10 § 1158(b)(1)(B)(iii). Singh initially testified that he was
11 harassed by the Indian police, but when asked to describe that
12 harassment, changed his testimony and said that he believed the
13 police “would have” harassed him. When asked to clarify if he
14 was “actually harassed by government authorities,” Singh
15 indicated that he was threatened, but not harassed or
16 persecuted. When the IJ then asked Singh to explain why a
17 letter from his political party stated he was harassed, Singh
18 said that he was harassed, then said he was threatened, but was
19 unable to remember any details of what occurred or when. The
20 documentary evidence enhanced, rather than resolved, this
21 discrepancy. The letter from Singh’s party stated that Singh
22 and his family faced government harassment “many times” and the
23 harassment was what forced Singh to flee the country. And
3
1 Singh’s testimony conflicted with his asylum application and
2 other evidence, which did not mention that he was harassed or
3 threatened by the police. See Xiu Xia Lin, 534 F.3d at 166 n.3
4 (“An inconsistency and an omission are . . . functionally
5 equivalent” for credibility purposes). This discrepancy alone
6 provided substantial evidence for the adverse credibility
7 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446
8 F.3d 289, 295 (2d Cir. 2006) (relying on single material
9 inconsistency as providing substantial evidence for adverse
10 credibility determination).
11 And the adverse credibility determination was bolstered by
12 an additional inconsistency, Singh’s nonresponsive demeanor,
13 as well as the lack of rehabilitative corroborating evidence.
14 8 U.S.C. § 1158(b)(1)(B)(iii). Singh testified that his family
15 was harassed and threatened by government authorities after he
16 left India, but he denied that his father was tortured. Singh’s
17 father swore in an affidavit, however, that he was tortured.
18 The IJ was not compelled to accept Singh’s explanation that his
19 father and other family members were metaphorically “tortured”
20 by the mistreatment of Singh. As the IJ noted, Singh’s father
21 first wrote that Singh was in danger and separately stated,
22 “They also tortured me and my family.” See Majidi v. Gonzales,
23
430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than
4
1 offer a plausible explanation for his inconsistent statements
2 to secure relief; he must demonstrate that a reasonable
3 fact-finder would be compelled to credit his testimony.’”
4 (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 76 (2d Cir.
5 2004)).
6 “We ‘afford particular deference in applying the
7 substantial evidence standard’ when reviewing an IJ's
8 credibility findings.” Jin Chen v. U.S. Dep’t of Justice, 426
9 F.3d 104, 113 (2d Cir. 2005) (quoting Zhou Yun Zhang,
386 F.3d
10 at 73-74). Particularly on cross examination, Singh was not
11 responsive. As the IJ noted, Singh did not adequately answer
12 questions about how many times he applied for a U.S. visa before
13 coming to the United States. See Shu Wen Sun v. BIA,
510 F.3d
14 377, 381 (2d Cir. 2007) (petitioner’s evasive and nonresponsive
15 testimony supported adverse credibility finding). Singh’s
16 explanation of confusion or interpretation problems is not
17 compelling because he confirmed that he understood the
18 interpreter during this problematic portion of his testimony.
19 See
Majidi, 430 F.3d at 80-81.
20 The agency also reasonably concluded that Singh failed to
21 rehabilitate his claim with reliable corroborating evidence.
22 See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007)
23 (recognizing that “applicant’s failure to corroborate his . . .
5
1 testimony may bear on credibility, because the absence of
2 corroboration in general makes an applicant unable to
3 rehabilitate testimony that has already been called into
4 question”). In particular, Singh did not produce letters to
5 corroborate that he lived in hiding for more than a year. His
6 explanation that he did not want his sisters-in-law who hid him
7 to get in trouble is unavailing: Singh submitted letters from
8 other non-blood relatives and had already placed the
9 sisters-in-law in danger by hiding with them. See Majidi, 430
10 F.3d at 80-81.
11 Given the foregoing inconsistencies regarding whether
12 Singh was harmed by the Indian police and whether his family
13 members were tortured, as well as Singh’s lack of responsiveness
14 and the lack of corroboration, the totality of the circumstances
15 supports the agency’s adverse credibility ruling. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167; Xian Tuan
17
Ye, 446 F.3d at 295. The adverse credibility determination is
18 dispositive of asylum, withholding of removal, and CAT relief
19 because all three claims were based on the same factual
20 predicate. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
21 2006).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of removal
6
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DENIED as moot. Any pending request for oral argument is
4 DENIED in accordance with Federal Rule of Appellate Procedure
5 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
7
