Filed: Apr. 06, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 4-6-2006 Singh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3720 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 1306. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1306 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 4-6-2006 Singh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3720 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 1306. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1306 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-6-2006
Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3720
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 1306.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1306
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3720
________________
BALWINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A73 646 146)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 12, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed April 6, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Balwinder Singh, a citizen of India, petitions for review of a final order of the
Board of Immigration Appeals (BIA). We will deny the petition for review.
I.
Singh entered the United States in 1993 with a phony passport; the next year, he
filed an application for asylum. The Government took no action on the application. In
2002, however, the Government initiated removal proceedings against Singh, and he filed
an updated application for asylum, withholding of removal, and protection under the
Convention Against Torture. At a hearing, the immigration judge (IJ) was not persuaded
by Singh’s story that he was persecuted by Indian police because of his activities in
support of Sikh separatism. The Board of Immigration Appeals (BIA) affirmed on the
basis of the IJ’s adverse credibility determination. Singh timely petitioned for review.
II.
Because the BIA did not provide any independent analysis, we review the decision
of the IJ as if it were the BIA’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d
Cir. 2001). Our standard of review is narrow. We must sustain the IJ’s removal order if
there is substantial evidence in the record to support it. Abdille v. Ashcroft,
242 F.3d
477, 483 (3d Cir. 2001). “Substantial evidence is more than a mere scintilla and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).
This is a deferential standard, and the IJ’s “finding must be upheld unless the evidence
not only supports a contrary conclusion, but compels it.”
Abdille, 242 F.3d at 483-84
(citing INS v. Elias-Zacarias,
502 U.S. 478, 481 & n.1 (1992)).
2
To qualify for asylum, a petitioner must be unwilling to return to his country
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. The fear must be both subjective and
“supported by objective evidence that persecution is a reasonable possibility.” Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (quotation omitted). To obtain withholding of
removal, an applicant must establish that his “life or freedom would be threatened” on the
basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C.
§ 1231(b)(3)(A)]. To obtain protection under the Convention Against Torture, an
applicant must show it is more likely than not that he will be subjected to torture on
removal. Auguste v. Ridge,
395 F.3d 123, 149 (3d Cir. 2005).
III.
The IJ’s adverse credibility determination rests on substantial evidence. See Dia v.
Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc) (on the standard). Singh told the IJ
that the Indian police took notice of him after he became a member of the Akali Dal
(Mann) political party in 1989. Once in 1991 and again in 1993, he said, the Indian
police came to his home looking for him. The IJ found this story unconvincing for a
number of reasons, some of which we detail below.
First, Singh could not explain inconsistencies between his 1994 asylum application
and his current effort. In his earlier application, for instance, he indicated that it was his
membership in a different political party, the Akali Dal (Badal) Party, and his position in
3
the Khalistan Commando Force that triggered the Indian government’s interest in him.
A.R. 192. In his new application, as well as in his testimony before the IJ, however,
Singh denied any involvement in these groups. See A.R. 93-97 (at the hearing, denying
any involvement with the Khalistan Commando Force), 182 (stating in the new
application that he was targeted because of his involvement with Akali Dal (Mann)).1 In
the 1994 application, Singh indicated that his brother and cousin had been arrested when
the police came to his home in 1991. A.R. 192. In the hearing before the IJ, though, he
indicated that he had himself also been taken into custody in 1991 when he went to the
police station after his relatives were arrested. A.R. 92-93. It is obviously difficult to
understand how Singh might have omitted his own arrest from his initial application.
Finally, in the 1994 application, Singh stated that he fled to the United States after being
hidden by friends in the Akali Dal movement; in the new application, however, he
indicated that he was living at his own home during the time in question. Compare
A.R. 182 with A.R. 191.
In addition to noting inconsistencies between the two applications, the IJ also
pointed to a significant inconsistency between Singh’s updated asylum application and
his hearing testimony. A.R. 48. In the asylum application, Singh indicated that no one
was home when the police came looking for him in 1993. A.R. 182. He testified at the
1
Singh conceded that the Khalistan Commando Force was a terrorist group. See
A.R. 96. Notably, if Singh aided a terrorist organization, he would be statutorily
ineligible for asylum. See INA § 208(b)(2)(A)(v) [8 U.S.C. § 1158(b)(2)(A)(v)]. This
might explain the change in his story.
4
hearing, however, that his mother was home at the time. A.R. 97. Finally, in addition to
all of these inconsistencies, the IJ criticized Singh for failing to offer any documentary
corroboration of his involvement in Akali Dal (Mann). A.R. 49. As the IJ noted, it likely
would have been possible—during his 10 years in the United States—for Singh to have
obtained some kind of proof of his membership in the organization.
The inconsistencies identified by the IJ go “to the heart” of Singh’s allegations of
persecution, making them an appropriate basis for the adverse credibility determination.
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).2 Likewise, the IJ reasonably held
against Singh his failure to offer any documentary corroboration of his claim. See
Berishaj v. Ashcroft,
378 F.3d 314, 326 (3d Cir. 2004) (noting that an IJ may expect
corroboration or a satisfactory explanation for the lack of corroboration); see also INA
§ 242(b)(4) [8 U.S.C. § 1252(b)(4)] (establishing quite deferential review of a
“determination by a trier of fact with respect to the availability of corroborating
evidence”). Given these problems (and others), as well as the deferential standard of
2
The Real ID Act of 2005 created a new INA § 208(b)(1)(B) [8 U.S.C.
§ 1158(b)(1)(B)] that apparently requires us to give even greater deference to an IJ’s
credibility determinations, even to determinations relying on inconsistencies and
omissions that do not go “to the heart of” an alien’s claims. Whatever the impact of this
new provision, however, it does not apply to cases such as this one, in which the asylum
application was filed long before the enactment of the Real ID Act. Real ID Act of 2005,
Pub. L. No. 109-13, Div. B, § 101(h)(2), 119 Stat. 231 (May 11, 2005).
5
review that governs, we could not possibly disturb the IJ’s credibility determination. See
See Dia, 353 F.3d at 247.3
IV.
For the reasons given, we will deny the petition for review.
3
Because Singh did not meet his burden of making out an asylum claim, he
necessarily failed to allege facts sufficient to make the more demanding showing
necessary for withholding of removal. See, e.g., Etugh v. INS, 921 F.2d 36, 40 (3d Cir.
1990). Furthermore, as the IJ concluded, nothing in the record suggests any probability
that Singh will be tortured. See A.R. 52.
6
