Filed: May 30, 2018
Latest Update: Mar. 03, 2020
Summary: 16-1753 Singh v. Sessions BIA Christensen, IJ A200 939 212 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
Summary: 16-1753 Singh v. Sessions BIA Christensen, IJ A200 939 212 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 T..
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16-1753
Singh v. Sessions
BIA
Christensen, IJ
A200 939 212
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 30th day of May, two thousand eighteen.
PRESENT:
REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
DAVINDER SINGH,
Petitioner,
v. 16-1753
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Adrian Spirollari, Brooklyn, N.Y.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Matthew A.
Spurlock, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Davinder Singh, a native and citizen of India,
seeks review of a May 4, 2016 decision of the BIA affirming
a January 12, 2015 decision of an Immigration Judge (“IJ”)
denying Singh’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Davinder Singh, No. A200 939 212 (B.I.A. May
4, 2016), aff’g No. A200 939 212 (Immig. Ct. N.Y.C. Jan. 12,
2015).
Under the circumstances of this case, we review both the
IJ’s and the BIA’s decisions, see Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying
well-established standards of review, see 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
66 (2d Cir. 2008). In so doing, we assume familiarity with
the underlying facts and procedural history of this case,
which we reference only as necessary to explain our decision
to deny the petition.
Under the REAL ID Act of 2005, the agency may,
“[c]onsidering the totality of the circumstances,” base an
2
adverse credibility finding upon an asylum applicant’s
“demeanor, candor, or responsiveness” and inconsistencies in
his statements, without regard to whether those
inconsistencies go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,
534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
determination unless . . . it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v.
Mukasey, 534 F.3d at 167. Thus, in challenging
an IJ’s credibility determination, “[a] petitioner must do
more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir.
2005) (emphasis in original) (internal quotation marks
omitted). For the reasons that follow, we conclude that Singh
has not made that showing and that substantial evidence
supports the agency’s determination that Singh was not
credible.
First, the agency’s reliance on Singh’s credible fear
interview was appropriate. A credible fear interview
warrants “close examination” because it may “be perceived as
coercive” by the alien or fail to “elicit all of the details
3
supporting an asylum claim.” Ming Zhang v. Holder, 585 F.3d
715, 724 (2d Cir. 2009). But “[w]here the record of a
credible fear interview displays the hallmarks of
reliability, it appropriately can be considered in assessing
an alien’s credibility.”
Id. at 725. Some “hallmarks of
reliability” are that the interview questions and answers
were memorialized, the interview was conducted through an
interpreter, and the questions were designed to elicit a
possible asylum claim.
Id. These indicia of reliability
are present here: the record reflects the questions asked and
answers given; the interview was conducted through a Punjabi
interpreter; the questions of whether Singh had been harmed
and what would happen to him on return were designed to elicit
an asylum claim; and there is no indication that Singh was
reluctant to reveal information because he recounted in
detail his fear of a rival political party. Although Singh
contends that the credible fear interview was unreliable
because the interviewer did not read the record back to him,
Singh concedes that he intentionally omitted reference to his
prior police arrests during the interview. A review of his
interview account therefore would not have resulted in a more
thorough record. Accordingly, the agency appropriately
4
considered Singh’s credible fear interview in assessing his
credibility.
Second, the agency reasonably relied on the discrepancy
between Singh’s credible fear interview and his asylum
application in making the adverse credibility determination.
At his credible fear interview, Singh stated that he was
attacked by members of a rival political party, but his asylum
application states that he was arrested and beaten by the
Indian police. Singh’s explanation that a smuggler advised
him to avoid mentioning his fear of the police does not compel
a contrary result, because it was reasonable for the IJ to
conclude that Singh had changed his story to bolster his
claim. See Majidi v. Gonzales, 430 F.3d at 80-81. Singh now
attributes his differing accounts to the credible-fear
interviewer, claiming that the interviewer asked him a
compound question—whether he had been arrested or convicted—
that made his answer of “no” ambiguous. This argument misses
the mark, however, because it does not resolve the
inconsistency between Singh’s claim that he was attacked by
political rivals and his claim that he was arrested and beaten
by the police.
The adverse credibility determination is further
supported by the inconsistencies between Singh’s testimony
5
and the letters he submitted from fellow members of the
Shiromani Akali Dal Amritsar (“SADA”). Singh testified that
he was arrested and detained in India and that SADA was aware
of his arrests. While the letters express general concern
about encounters with the police by party members, they make
no mention of Singh’s own arrests. The IJ reasonably relied
on this omission. Xiu Xia Lin v. Mukasey, 534 F.3d at 167
(upholding agency decision that rested on omissions from
letters).
Finally, the agency reasonably determined that Singh’s
corroborating evidence did not rehabilitate his credibility.
An applicant’s failure to corroborate testimony may bear on
credibility “because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.” Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). Given that Singh’s
credibility was already in question, the agency reasonably
afforded diminished weight to Singh’s letters from his
father, wife, and head of his village in India because the
authors were unavailable for cross examination and his father
and wife were interested parties. See Y.C. v. Holder,
741
F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s
determination that letter from relative in China was entitled
6
to limited weight because it was unsworn and submitted by an
interested witness). Additionally, the agency reasonably
gave diminished weight to medical records that Singh
submitted, which were prepared years after Singh received
treatment. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 342 (2d Cir. 2006) (explaining that weight accorded to
applicant’s evidence “lies largely within the discretion of
the IJ” (internal alteration and quotation marks omitted)).
Given the inconsistencies in Singh’s account and the lack
of reliable or consistent corroboration, the totality of the
circumstances supports the agency’s adverse credibility
determination. See Xiu Xia Lin v. Mukasey, 534 F.3d at 165-
67. The credibility finding is dispositive of asylum,
withholding of removal, and CAT relief because all three forms
of relief were based on the same factual predicate. See Paul
v. Gonzales,
444 F.3d 148, 156-67 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
7
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8
