Filed: Aug. 10, 2020
Latest Update: Aug. 10, 2020
Summary: 18-1168 Singh v. Barr BIA Kolbe, IJ A202 064 095 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
Summary: 18-1168 Singh v. Barr BIA Kolbe, IJ A202 064 095 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 NOTATIO..
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18-1168
Singh v. Barr
BIA
Kolbe, IJ
A202 064 095
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 10th day of August, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
RAVINDER SINGH,
Petitioner,
v. 18-1168
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Natasha Mallhi, Esq., New York,
NY.
FOR RESPONDENT: Gregory Darrel Mack, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 GRANTED, the decision of the BIA is VACATED, and the case
is REMANDED to the BIA for further proceedings consistent
with this order.
Petitioner Ravinder Singh, a citizen of India, seeks
review of an April 6, 2018, decision of the BIA affirming a
June 8, 2017, 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
Ravinder Singh, No. A 202 064 095 (B.I.A. Apr. 6, 2018), aff’g
No. A 202 064 095 (Immig. Ct. N.Y. City June 8, 2017). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Singh’s application sought to establish past persecution
by detailing three incidents during which members of the Sikh
religion attacked him because of his membership in a religious
sect known as Dera Sacha Sauda. The IJ denied Singh’s
application in its entirety on the basis of an adverse
credibility determination, which in turn was based on three
inconsistencies in Singh’s testimony and an assessment of his
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demeanor. We have reviewed the IJ’s decision as modified and
supplemented by the BIA, which adopted and affirmed that
decision but limited its discussion to the IJ’s adverse
credibility determination. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales,
417 F.3d 268, 271 (2d Cir. 2005); Stanley v.
Mukasey, 268 F. App’x 24, 25 (2d Cir. 2008) (reviewing, in
similar circumstances, only those portions of the IJ’s
reasoning that the BIA mentioned in adopting and affirming
the IJ decision).
“We defer . . . to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008); accord Hong Fei Gao v. Sessions,
891 F.3d
67, 76 (2d Cir. 2018). The trier of fact may consider, among
other factors, “the demeanor, candor, or responsiveness of
the applicant,” the consistency of the applicant’s “written
and oral statements,” and “the consistency of such statements
with other evidence of record.” 8 U.S.C.
§ 1158(b)(1)(B)(iii).
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The IJ based her adverse credibility determination in
part on her assessment of Singh’s demeanor. According to the
IJ, when Singh testified about a January 20, 2015 attack, “he
provided a long monologue of those events and gave the
impression of a rehearsed description of events. [Singh] did
not wait for counsel’s questions to elicit the details of
what, if credible, would have been a terrifically difficult
experience, but rather provided a detailed rehearsed
monologue which the Court found unconvincing.” Certified
Administrative Record (“CAR”) 31.
As a general matter, the mere fact that an applicant
appears to have prepared to answer questions in detail at his
or her removal proceeding is not a basis to doubt that
applicant’s credibility. Thus, while we will defer to an
adverse credibility determination supported by an IJ’s
assessment that an applicant’s testimony appears “rehearsed,”
we will do so only where that assessment is paired with
something more — for example, “vague” and “non-responsive”
answers, Yingsheng Zheng v. Holder, 476 F. App’x 903, 904 (2d
Cir. 2012), hesitancy indicating that the applicant is
following a “poorly rehearsed script,” Xiu Qin Yu v. Holder,
327 F. App’x 264, 265 (2d Cir. 2009) (emphasis added), or
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“evasive[ness],” Bin Xun Chen v. Holder, 577 F. App’x 28, 29
(2d Cir. 2014); Lei Ye v. Holder, 530 F. App’x 38, 39 (2d
Cir. 2013). Where, by contrast, “[t]he entirety of the
demeanor finding is that [the applicant’s] testimony appeared
to be rehearsed to reflect the recitation of a story that she
had learned, rather than real life events,” without further
support, we have declined to defer to the IJ’s credibility
assessment. Yingshi Li v. Sessions, 723 F. App’x 53, 55 (2d
Cir. 2018) (internal quotation marks omitted).
Here, the “monologue” that the IJ found too “detailed”
and “rehearsed” to be credible took up no more than a page’s
worth of the hearing transcript, and was prompted by a request
that Singh “explain in detail what happened.” CAR 99.
Absent further support, no reasonable factfinder could base
an adverse credibility determination on the impression that
an applicant has done what any reasonable person in removal
proceedings would do: namely, prepare for questioning at a
potentially life-altering hearing.
The IJ also based her adverse credibility determination
on three supposed inconsistencies in Singh’s testimony. Our
review of such a determination is deferential, as we have
explained; however, “although IJs may rely on non-material
5
omissions and inconsistencies, not all omissions and
inconsistencies will deserve the same weight. A trivial
inconsistency or omission that has no tendency to suggest a
petitioner fabricated his or her claim will not support an
adverse credibility determination.” Hong Fei Gao, 891 F.3d
at 77.
At least two of the inconsistencies cited by the IJ are
too trivial to support an adverse credibility determination.
First, Singh stated in his initial application that a January
31, 2014 attack ended only when, “[s]eeing [his] coworker
coming, [his assailants] ran away.” CAR 176. Later, Singh
testified that as his coworker arrived on the scene of the
attack, the coworker called to “other men,” and that this was
what made the assailants run away. CAR 128. Second, Singh
wrote in his application that after that attack, he fled to
his “uncle place [sic]” in Delhi for six months. CAR 176.
Later, both Singh’s testimony and his uncle’s statement
indicated that the house in which Singh stayed during that
period was actually owned by his uncle’s friend. Each of
these supposed inconsistencies is so trivial that neither has
any tendency to suggest that Singh fabricated his claim, Hong
Fei Gao, 891 F.3d at 77, still less in light of Singh’s
6
reliance on an interpreter, see Gurung v. Barr, 929 F.3d 56,
61 (2d Cir. 2019). Accordingly, neither of those
inconsistencies may properly support an adverse credibility
determination.
The third inconsistency cited by the IJ concerned Singh’s
description of the first attack he suffered. In his
application, Singh wrote that four men “pushed [him] hard”
and that he “got a small nick on his lip,” CAR 176, but he
later testified that his attackers pushed, punched, and
kicked him for several minutes.
We need not decide whether this last inconsistency was
sufficient to support an adverse credibility determination
because the IJ stated that “any one of” the factors on which
she based that determination — the demeanor assessment and
the three inconsistencies — “would be insufficient to doubt
[Singh’s] credibility as a whole.” CAR 31. Because three
of those four factors should not have been included in the
credibility assessment to begin with, we are left with only
one, along with the IJ’s express determination that she would
not have reached an adverse credibility determination on the
basis of that factor alone. It is therefore appropriate to
vacate the adverse credibility determination and to proceed
7
as though “no adverse credibility determination [was]
explicitly made.” 8 U.S.C. § 1158(b)(1)(B)(iii).
As an alternative ground for denying Singh’s applications
for asylum, withholding of removal, and CAT relief, the IJ
also found that even assuming Singh had presented a credible
claim of past persecution, the Department of Homeland
Security had successfully rebutted any presumption of a well-
founded fear of future persecution. Because the BIA did not
address any of these alternative grounds in its decision, we
will remand to the BIA so that it may do so in the first
instance.
For the foregoing reasons, the petition for review is
GRANTED, the order of the BIA is VACATED, and the case is
REMANDED to the BIA for further proceedings consistent with
this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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