Filed: Apr. 06, 2012
Latest Update: Feb. 22, 2020
Summary: 11-2314-ag Singh v. Holder BIA Weisel, IJ A072 403 979 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: 11-2314-ag Singh v. Holder BIA Weisel, IJ A072 403 979 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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11-2314-ag
Singh v. Holder
BIA
Weisel, IJ
A072 403 979
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of April, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 JASBIR SINGH,
14 Petitioner,
15
16 v. 11-2314-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Richard W. Chen, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, U.S.
30 Department of Justice, Washington,
31 D.C.
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
4 is DENIED.
5 Petitioner Jasbir Singh, a native and citizen of India,
6 seeks review of the May 9, 2011, decision of the BIA
7 reversing the December 4, 2007, decision of Immigration
8 Judge (“IJ”) Robert Weisel, granting Jasbir Singh asylum.
9 In re Jasbir Singh, No. A072 403 979 (B.I.A. May 9, 2011),
10 rev’g No. A072 403 979 (Immig. Ct. N.Y. City Dec. 4, 2007).
11 We assume the parties’ familiarity with the underlying facts
12 and procedural history of this case.
13 Because the BIA rejected the decision of the IJ in its
14 entirety, we have reviewed only the decision of the BIA.
15 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We
16 review the agency’s factual findings, including adverse
17 credibility findings, under the substantial evidence
18 standard, treating them as “conclusive unless any reasonable
19 adjudicator would be compelled to conclude to the contrary.”
20 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
21
534 F.3d 162, 165-66 (2d Cir. 2008). We review questions of
22 law de novo. Aliyev v. Mukasey,
549 F.3d 111, 115 (2d Cir.
2
1 2008). For asylum applications governed by the REAL ID Act,
2 such as the application in this case, the agency may,
3 considering the totality of the circumstances, base a
4 credibility finding on, inter alia, inaccuracies or
5 falsehoods in an applicant’s statements without regard to
6 whether they go “to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
8 64.
9 The BIA did not err in concluding that the IJ’s factual
10 findings that formed the basis for his positive credibility
11 determination were clearly erroneous and the BIA’s adverse
12 credibility determination is supported by substantial
13 evidence.* See 8 C.F.R. § 1003.1(d)(3)(i); see also
14 Anderson v. City of Bessemer,
470 U.S. 564, 573 (1985) (“A
15 finding is clearly erroneous when, although there is
16 evidence to support it, the reviewing court on the entire
*
Contrary to Singh’s contention, the BIA did not
find that he knowingly filed a frivolous asylum
application, but concluded only that he was not credible
due to his filing of a fraudulent asylum application.
See Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106,
112-15 (2d Cir. 2006) (recognizing that a finding that an
applicant knowingly filed a frivolous asylum application,
which permanently forecloses the applicant from certain
immigration benefits, “does not flow automatically from
an adverse credibility determination”) (citations
omitted).
3
1 evidence is left with the definite and firm conviction that
2 a mistake has been committed.”) (internal quotation marks
3 and citations omitted). In this case, the BIA reasonably
4 concluded that the IJ committed clear error in finding that
5 the “record lack[ed] any evidence that [Singh’s] . . .
6 asylum application was fraudulent,” because there were
7 striking similarities in the description of incidents of
8 persecution between Singh’s March 2002 asylum application,
9 which was prepared by individuals who were subsequently
10 convicted of conspiracy to submit false asylum applications,
11 and an application filed in July 2001 by the same
12 individuals. See Anderson, 470 U.S. at 573. Moreover, the
13 similarities supported the BIA’s adverse credibility
14 determination. See Mei Chai Ye v. U.S. Dep’t of Justice,
15
489 F.3d 517, 524 (2d Cir. 2007)(discussing similarities in
16 the “inter-proceeding” context, i.e., where similar
17 documents are produced by aliens in different removal
18 proceedings and concluding that “striking similarities
19 between affidavits are an indication that the statements are
20 ‘canned’” and provide a basis for deeming an applicant’s
21 general credibility undermined)(citation omitted); see also
22 Borovikova v. U.S. Dep’t of Justice,
435 F.3d 151, 157-58
23 (2d Cir. 2006) (concluding that the submission of a
4
1 fraudulent document in support of an asylum application
2 alone may constitute substantial evidence to support an
3 adverse credibility finding).
4 Furthermore, we find no merit to Singh’s arguments that
5 the agency violated the Federal Rules of Evidence and his
6 due process rights by admitting into the record, and relying
7 on, a Termination Notice prepared by an asylum officer who
8 did not appear at his hearing and by allowing a government
9 witness to testify without timely serving a proposed witness
10 list. There is no merit to Singh’s argument that the agency
11 violated the Federal Rules of Evidence in his proceedings
12 because “the Federal Rules of Evidence do not apply in
13 removal proceedings; rather, ‘[e]vidence is admissible
14 provided that it does not violate the alien’s right to due
15 process of law.’” Aslam v. Mukasey, 537 F.3d 110, 114 (2d
16 Cir. 2008) (quoting Zhen Nan Lin v. U.S. Dep’t of Justice,
17
459 F.3d 255, 268 (2d Cir. 2006)). In the immigration
18 context, “[t]he standard for due process is [] satisfied . .
19 . if the evidence ‘is probative and its use is fundamentally
20 fair,’ fairness in this context being ‘closely related to
21 the reliability and trustworthiness of the evidence.’”
Id.
22 (quoting Zhen Nan
Lin, 459 F.3d at 268); see also Li Hua Lin
23 v. U.S. Dept. of Justice,
453 F.3d 99, 104-05 (2d Cir. 2006)
5
1 (providing that due process requires that an applicant
2 receive a full and fair hearing that provides a meaningful
3 opportunity to be heard). If an applicant shows that his
4 hearing was not fair based on the submission of evidence, he
5 also must demonstrate that he was prejudiced by the error.
6 See Aslam, 537 F.3d at 115; see also Garcia-Villeda v.
7 Mukasey,
531 F.3d 141, 149 (2d Cir. 2008).
8 Here, the agency did not violate Singh’s due process
9 rights by admitting and relying on the Termination Notice
10 because the document did not raise any reliability concerns
11 and Singh did not challenge the reliability of the notice
12 before the IJ despite ample opportunity to do so. See
13 Felzcerek v. INS,
75 F.3d 112, 116 (2d Cir. 1996)
14 (recognizing that “records made by public officials in the
15 ordinary course of their duties . . . evidence strong
16 indicia of reliability”). Additionally, contrary to Singh’s
17 argument regarding a government witness’s testimony, the
18 government provided almost eight months’ prior notice of its
19 intent to produce a fact witness as to the criminal
20 enterprise of the preparers of Singh’s asylum application,
21 and Singh was provided an opportunity to question the
22 government witness regarding the reliability of his
23 testimony. See Li Hua
Lin, 453 F.3d at 104-05; Aslam, 537
6
1 F.3d at 115. Finally, Singh cannot demonstrate that he was
2 prejudiced by the admission of either the Termination Notice
3 or the government witness’s testimony because, even without
4 that evidence, the striking similarities between his
5 application and another prepared by the same persons alone
6 demonstrated clear error in the IJ’s decision and supported
7 the conclusion that his asylum application was fraudulent.
8 See Mei Chai
Ye, 489 F.3d at 526; see also Aslam,
537 F.3d
9 at 115;
Garcia-Villeda, 531 F.3d at 149.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, petitioner’s
12 pending motions for a stay of removal in this petition is
13 DISMISSED as moot. Any pending request for oral argument in
14 this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
7
