Filed: Apr. 25, 2019
Latest Update: Mar. 03, 2020
Summary: 17-819 Singh v. Barr BIA Poczter, IJ A206 633 497 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
Summary: 17-819 Singh v. Barr BIA Poczter, IJ A206 633 497 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 NOTATI..
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17-819
Singh v. Barr
BIA
Poczter, IJ
A206 633 497
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 25th day of April, two thousand nineteen.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JAGJIT SINGH,
14 Petitioner,
15
16 v. 17-819
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Anas Jameel Ahmed,
24 Jackson Heights, NY
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Jessica E.
28 Burns, Senior Litigation Counsel;
29 Scott M. Marconda, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, 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
4 is DENIED.
5 Petitioner Jagjit Singh, a native and citizen of India,
6 seeks review of the BIA’s affirmance of an Immigration Judge’s
7 (“IJ”) denial of Singh’s application for asylum, withholding
8 of removal, and relief under the Convention Against Torture
9 (“CAT”). In re Jagjit Singh, No. A206 633 497 (B.I.A. Feb.
10 23, 2017), aff’g No. A206 633 497 (Immig. Ct. N.Y. City July
11 12, 2016).
12 Under the circumstances, we have reviewed both the BIA’s
13 and IJ’s decisions, see Yun-Zui Guan v. Gonzales, 432 F.3d
14 391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees with
15 the IJ’s conclusion that a petitioner is not credible and,
16 without rejecting any of the IJ’s grounds for decision,
17 emphasizes particular aspects of that decision, we will
18 review both the BIA’s and IJ’s opinions . . . including the
19 portions not explicitly discussed by the BIA.”), applying
20 well-established standards of review, see 8 U.S.C.
21 § 1252(b)(4); Hong Fei Gao v. Sessions,
891 F.3d 67, 76 (2d
22 Cir. 2018) (reviewing adverse credibility determination for
2
1 substantial evidence). In so doing, we assume the parties’
2 familiarity with the underlying facts and procedural history
3 of this case, which we reference only as necessary to explain
4 our decision to deny the petition.
5 “[A] trier of fact may base a credibility determination
6 on the demeanor, candor, or responsiveness of the applicant
7 or witness, the inherent plausibility of the applicant’s or
8 witness’s account, the consistency between the applicant’s or
9 witness’s written and oral statements . . . , the internal
10 consistency of each such statement, [and] the consistency of
11 such statements with other evidence of record . . ., without
12 regard to whether an inconsistency, inaccuracy, or falsehood
13 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
14 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
15 determination, unless, from the totality of the
16 circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
19
Gao, 891 F.3d at 76. Applying these standards, we conclude
20 that substantial evidence supports the agency’s determination
21 that Singh was not credible.
22
3
1 First, Singh’s hearing testimony differed from his
2 credible fear interview in nontrivial ways. For example,
3 during his credible fear interview, Singh stated that he only
4 suspected, but was not certain, who had attacked him because
5 his attackers had hidden their faces. By contrast, at his
6 hearing two years later, Singh testified that he was certain
7 that his attackers were members of the Congress Party because
8 “they were wearing clothes having symbol of Congress party on
9 it.” Certified Record on Appeal at 84. A witness’s “silence
10 on particular facts depends on whether those facts are ones
11 the witness would reasonably have been expected to disclose.”
12 Hong Fei Gao, 891 F.3d at 78. Here, Singh was silent during
13 his interview as to facts highly relevant to his
14 identification of his assailants as persons acting on a
15 protected ground. The agency, therefore, reasonably relied
16 on this omission to find Singh not credible. See Xian Tuan
17 Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006)
18 (holding that “material inconsistency in an aspect of [the]
19 story that served as an example of the very persecution from
20 which [petitioner] sought asylum . . . afforded substantial
21 evidence to support the adverse credibility finding”
22 (internal citation and quotation marks omitted)).
4
1 Insofar as Singh faults the agency for relying on notes
2 of his credible fear interview, we are not persuaded. “Where
3 the record of a credible fear interview displays the hallmarks
4 of reliability, it appropriately can be considered in
5 assessing an alien’s credibility.” Ming Zhang v. Holder, 585
6 F.3d 715, 725 (2d Cir. 2009). The notes in question meet
7 this standard: they are typewritten, organized,
8 contemporaneous, and summarize the questions asked and the
9 answers given. See
id. (finding notes of credible fear
10 interview reliable because “proceeding was memorialized in a
11 typewritten document setting forth the questions put to
12 petitioner as well as her responses”).
13 Additional inconsistencies reinforce the agency’s
14 adverse credibility determination. Singh testified that he
15 had never been arrested in India, but a letter he submitted
16 on the letterhead of his political party stated the opposite.
17 He also claimed that he had not been interested in politics
18 before 2009 (when he was 19), but an affidavit purporting to
19 be from his neighbor stated that he had been interested in
20 politics since childhood. Singh was unable to explain any
21 of these discrepancies when given the opportunity. Cf. Ming
22 Shi Xue v. BIA,
439 F.3d 111, 118 (2d Cir. 2006) (holding
5
1 that petitioner must be given “opportunity to address and
2 explain” inconsistencies that are “not so dramatic as to be
3 self-evident”).
4 We also discern no reversible error in the IJ’s
5 determination that some of Singh’s testimony was inherently
6 implausible. Singh claimed that he would face political
7 persecution if he returned to India because the Congress Party
8 would find him no matter his location in the country. As the
9 IJ noted, this is inconsistent with Singh’s testimony that he
10 remained unharmed in his own home for a year after the second
11 assault, even though the Congress Party knew where he lived.
12 See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007)
13 (“[A]n IJ is entitled to consider whether the applicant’s
14 story is inherently implausible.”); 8 U.S.C.
15 § 1158(b)(1)(B)(iii).
16 Finally, Singh complains that the agency erred by relying
17 on his inconsistencies because they were “minor.” The REAL
18 ID Act permits the agency to rely on “any” inconsistency, but
19 the inconsistency must be considered in light of the totality
20 of the circumstances, and “bear a legitimate nexus” to the
21 finding of adverse credibility. Hong Fei
Gao, 891 F.3d at
22 77 (internal quotation marks omitted). Applying this
6
1 standard, we identify no error. Singh’s application was
2 premised on two instances of persecution that occurred in the
3 relatively recent past, and the inconsistencies that the
4 agency relied on, particularly Singh’s initial silence as to
5 how he identified his attackers, went to the core of Singh’s
6 political persecution claim.
7 Accordingly, the totality of the circumstances, showing
8 inconsistencies and implausibilities, supports the agency’s
9 adverse credibility determination. This adverse credibility
10 determination is dispositive of Singh’s asylum, withholding
11 of removal, and CAT claims because all three are based on the
12 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
13 156-57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe
18 Clerk of Court
7
