Filed: Aug. 26, 2020
Latest Update: Aug. 26, 2020
Summary: 18-1493 Singh v. Barr BIA Schoppert, IJ A200 236 190 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 NO
Summary: 18-1493 Singh v. Barr BIA Schoppert, IJ A200 236 190 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 NOT..
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18-1493
Singh v. Barr
BIA
Schoppert, IJ
A200 236 190
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 26th day of August, two thousand twenty.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD J. SULLIVAN,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 BALWINDER SINGH,
15 Petitioner,
16
17 v. 18-1493
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
25 New York, NY.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Ernesto H.
29 Molina, Jr., Deputy Director;
1 Nancy N. Safavi, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
7 AND DECREED that this petition for review of a decision of
8 the Board of Immigration Appeals (“BIA”) is DENIED.
9 Petitioner Balwinder Singh, a native and citizen of
10 India, seeks review of an April 26, 2018, decision of the BIA
11 affirming a July 5, 2017 decision of an Immigration Judge
12 (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Balwinder Singh, No. A200 236 190 (B.I.A.
15 Apr. 26, 2018), aff’g No. A200 236 190 (Immig. Ct. N.Y. City
16 Jul. 5, 2017). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We review the agency’s adverse credibility determination
19 for substantial evidence. 8 U.S.C. § 1252(b)(4)(B). Under
20 the circumstances of this case, we review the IJ’s decision
21 as modified by the BIA. That is, we need not consider the
22 IJ’s discussion of purported inconsistencies in Singh’s
23 testimony about his arrest record because the BIA did not
24 rely on that ground in affirming the adverse credibility
25 determination. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76
2
1 (2d Cir. 2018).
2 “Considering the totality of the circumstances, and all
3 relevant factors, a trier of fact may base a credibility
4 determination on . . . the consistency between the applicant’s
5 or witness’s written and oral statements . . . , without
6 regard to whether an inconsistency, inaccuracy, or falsehood
7 goes to the heart of the applicant’s claim, or any other
8 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
9 . . . to an IJ’s credibility determination unless, from the
10 totality of the circumstances, it is plain that no reasonable
11 fact-finder could make such an adverse credibility ruling.”
12 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
13 accord Hong Fei
Gao, 891 F.3d at 76.
14 Here, substantial evidence supports the agency’s
15 determination that Singh was not credible as to his claim
16 that police and members of a rival political party detained
17 and beat him because of his membership in the political party
18 Shiromani Akali Dal Amritsar (“SADA”). The BIA properly
19 relied on the inconsistency between Singh’s statements at his
20 initial credible fear interview and his subsequent asylum
21 application about whether SADA seeks to establish an
22 independent Sikh state. At the credible fear interview, Singh
3
1 stated that SADA’s leader “does not want a separate state”
2 and asserted that articles suggesting the contrary were “just
3 rumors.” However, in his subsequent written application for
4 asylum and withholding of removal, Singh stated that SADA
5 demands “an independent homeland for the Sikhs called
6 Khalistan.”
7 When the IJ confronted Singh with this inconsistency,
8 Singh testified that he told the asylum officer at the
9 credible fear interview that SADA’s leader “demands a
10 separate state, but this separate state cannot be established
11 now.” But the interview record—which reflects that Singh
12 unequivocally denied that SADA’s leader seeks a separate
13 state—does not support that explanation. Further, at the
14 beginning of the interview, the asylum officer informed Singh
15 of the importance of telling the truth and that his statements
16 could be used in future immigration proceedings. Thus, the
17 agency was not required to accept Singh’s explanation for the
18 inconsistency. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
19 Cir. 2005) (“A petitioner must do more than offer a plausible
20 explanation for his inconsistent statements to secure relief;
21 he must demonstrate that a reasonable fact-finder would be
22 compelled to credit his testimony.” (internal quotation marks
4
1 omitted)).
2 Contrary to Singh’s argument that this inconsistency
3 about SADA’s goals was minor, his membership in SADA was the
4 alleged motive for the purported attacks against him and the
5 basis for his political opinion claim. Cf. Xian Tuan Ye v.
6 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
7 (holding, in a pre-REAL ID Act case, that an inconsistency
8 concerning the basis of an applicant’s asylum claim is
9 substantial evidence of adverse credibility). “[E]ven a
10 single inconsistency might preclude an alien from showing
11 that an IJ was compelled to find him credible,” Likai Gao v.
12 Barr, No. 18-358,
2020 WL 4290009, at *4 n.8 (2d Cir. July
13 28, 2020), and the IJ may rely on such an inconsistency
14 “without regard to whether [it] . . . goes to the heart of
15 the applicant’s claim,” 8 U.S.C. § 1158(b)(1)(B)(iii). And
16 while a “trivial inconsistency or omission that has no
17 tendency to suggest a petitioner fabricated his or her claim
18 will not support an adverse credibility determination,” Hong
19 Fei
Gao, 891 F.3d at 77, given the “totality of the
20 circumstances” here, we defer to the agency’s credibility
21 determination, Likai Gao,
2020 WL 4290009, at *4; see also
22 Xiu Xia
Lin, 534 F.3d at 167.
5
1 Moreover, the agency reasonably determined that Singh
2 did not rehabilitate his credibility with reliable
3 corroborating evidence. The IJ did not err in giving
4 diminished weight to affidavits from Singh’s father, his
5 wife, and an elected official from his village because the
6 authors were not subject to cross-examination and Singh’s
7 father was an interested witness. See Y.C. v. Holder, 741
8 F.3d 324, 332 (2d Cir. 2013) (providing that “[w]e generally
9 defer to the agency’s evaluation of the weight to be afforded
10 to an applicant’s documentary evidence” and deferring to
11 agency’s decision to afford little weight to letter from
12 applicant’s spouse).
13 Because Singh’s claims for asylum, withholding of
14 removal, and CAT relief were all based on the same factual
15 predicate, the agency’s adverse credibility determination is
16 dispositive of all three. Hong Fei
Gao, 891 F.3d at 76.
17 Singh argues that the agency further erred in denying CAT
18 relief because two reports in the record, not undermined by
19 the agency’s adverse credibility determination, discuss
20 torture by police in Singh’s region of India. But those
21 reports do not provide an independent basis for CAT relief
22 because they do not contain particularized evidence that
6
1 police are likely to torture him. See Mu Xiang Lin v. U.S.
2 Dep’t of Justice, 432 F.3d 156, 159–60 (2d Cir. 2005)
3 (concluding that “particularized evidence” beyond State
4 Department reports is necessary to establish eligibility for
5 CAT protection for applicant alleging she would be tortured
6 for leaving China illegally).
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
7
