Filed: Sep. 15, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1804 Singh v. Lynch BIA Morace, IJ A200 291 187 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 NOTA
Summary: 15-1804 Singh v. Lynch BIA Morace, IJ A200 291 187 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 NOTAT..
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15-1804
Singh v. Lynch
BIA
Morace, IJ
A200 291 187
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 15th day of September, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 NAMINDER SINGH,
14 Petitioner,
15
16 v. 15-1804
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General;
27 Jennifer P. Williams, Senior
28 Litigation Counsel; Raya Jarawan,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Naminder Singh, a native and citizen of India,
6 seeks review of a May 4, 2015 decision of the BIA affirming a
7 September 11, 2013, 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 Naminder Singh, No. A200 291 187 (B.I.A. May 4, 2015), aff’g
11 No. A200 291 187 (Immigr. Ct. N.Y.C. Sept. 11, 2013). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We consider the IJ’s decision “as modified by the BIA’s
15 decision.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
16 520, 522 (2d Cir. 2005). The applicable standards of review
17 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
18 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
19 Under the REAL ID Act of 2005, the agency may, in light of
20 “the totality of the circumstances,” base an adverse
21 credibility determination on an applicant’s “demeanor, candor,
2
1 or responsiveness,” the plausibility of his account, and
2 inconsistencies in his statements, “without regard to whether”
3 those inconsistencies go “to the heart of the applicant’s
4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
5 534 F.3d 162, 165 (2d Cir. 2008). Under the “substantial
6 evidence” standard of review, “we defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder could
9 make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d
10 at 166-67.
11 Here, the ruling is sound, “based on specific examples in
12 the record of ‘inconsistent statements’ by” Singh “about
13 matters material to his claim of persecution,” namely when the
14 alleged attacks occurred. Zhou Zhang v. INS,
386 F.3d 66, 74
15 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.
16 U.S. Dep’t of Justice,
494 F.3d 296 (2d Cir. 2007). Singh
17 testified that Congress Party motorcyclists attacked him in
18 April 2011, but his written application said that the attack
19 occurred in March 2010. His explanation for this inconsistency
20 was that his grandmother had passed away recently. Similarly,
21 he testified that the police beat him in March 2011, but his
3
1 written statement stated that the beating occurred in April
2 2010. His explanation for that inconsistency was that he was
3 nervous. The agency was not compelled to credit these
4 explanations, which were not entirely consistent with each
5 other. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
6 (explaining that the agency is not required to credit an
7 explanation that is merely plausible or possible).
8 Singh argues that “the BIA failed to consider the time frame
9 between [the two] incidents and [the] totality of
10 circumstances[,] including the death of [his] grandmother.”
11 But the agency considered--and rejected--his explanations.
12 Singh’s counsel also cites a Ninth Circuit decision addressing
13 trauma victims’ faulty memories. But Singh did not testify
14 that trauma caused his confusion, and “[a]n attorney’s unsworn
15 statements in a brief are not evidence.” Kulhawik v. Holder,
16
571 F.3d 296, 298 (2d Cir. 2009). Even if Singh had so
17 testified, the IJ would not have been obligated to credit that
18 explanation, which does not account for why he recalled the
19 correct dates when writing his asylum application. Majidi,
430
20 F.3d at 80.
4
1 Singh argues that “if the IJ decides that the applicant
2 should provide corroboration, the applicant must then have an
3 opportunity to provide it, or explain that he does not have it
4 and ‘cannot reasonably obtain it.’” He extracts this rule from
5 the following passage of the INA: “Where the trier of fact
6 determines that the applicant should provide evidence that
7 corroborates otherwise credible testimony, such evidence must
8 be provided unless the applicant does not have the evidence and
9 cannot reasonably obtain the evidence.” 8 U.S.C.
10 § 1158(b)(1)(B)(ii)(emphasis added). Singh’s argument
11 overlooks the critical phrase: “otherwise credible testimony.”
12 The IJ need not take these additional steps where, as here, the
13 IJ’s concerns about corroboration are tied to testimony the IJ
14 does not credit. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
15 F.3d 315, 341 (2d Cir. 2006); see Biao Yang v. Gonzales, 496
16 F.3d 268, 273 (2d Cir. 2007) (observing that an applicant’s
17 failure to corroborate may bear on credibility, either because
18 the absence of particular evidence is viewed as suspicious or
19 its absence prevents the applicant from rehabilitating
20 testimony already called into question).
5
1 Given the inconsistencies that cast doubt on whether Singh
2 suffered the critical incidents of alleged persecution and the
3 lack of corroborating evidence, the totality of the
4 circumstances supports the agency’s adverse credibility
5 determination. Singh’s applications for asylum, withholding
6 of removal, and CAT relief were based on the same factual
7 predicate, and so the adverse credibility determination was
8 dispositive as to all three. See Paul v. Gonzales, 444 F.3d
9 148, 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
6
