Filed: Jul. 06, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1016 _ SURINDER SINGH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A087-998-807) Immigration Judge: Honorable Ramin Rastegar _ Submitted Pursuant to Third Circuit LAR 34.1(a) July 2, 2018 Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges (Opinion filed: July 6, 2018) _ OPINION * _ PER CURIAM * This di
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1016 _ SURINDER SINGH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A087-998-807) Immigration Judge: Honorable Ramin Rastegar _ Submitted Pursuant to Third Circuit LAR 34.1(a) July 2, 2018 Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges (Opinion filed: July 6, 2018) _ OPINION * _ PER CURIAM * This dis..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1016
___________
SURINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-998-807)
Immigration Judge: Honorable Ramin Rastegar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 2, 2018
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed: July 6, 2018)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Surinder Singh petitions pro se for review of the Board of Immigration Appeals’
(BIA) order dismissing his appeal from an immigration judge’s (IJ) decision ordering his
removal and denying his application for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). For the reasons that follow, we will deny his
petition.
I.
Singh is a citizen of India who arrived in the United States in 2010. Upon his
arrival at the border in Texas, he was charged with being removable for not possessing
valid entry documents. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Several weeks later, Singh
was given a credible fear interview by an asylum officer, to whom Singh expressed a fear
of returning to India.
Once in removal proceedings, Singh, through counsel, conceded his removability
but applied for asylum, withholding of removal, and relief under the CAT. In support of
his application, Singh alleged the following account. When he was fifteen years old,
Singh joined the Akali Dal political party, which was opposed to the Congress party. He
realized as a teenager that he was sexually attracted to men, and before he left India he
had a secret sexual relationship with a male friend from school, who was the only person
who knew about Singh’s sexual orientation. In March 2010, he was engaging in a sexual
act with his friend in a farmhouse when members of the Congress party discovered them
and beat them. Singh’s attackers kidnapped them and locked them in a room. After a
few hours, Singh and his friend were able to break out of the room and run to a police
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station. The police officers threatened Singh because of his political affiliation when he
arrived at the station. His attackers arrived at the police station shortly after they did and
reported that Singh and his friend had been engaged in sexual activity. Upon hearing
this, the police officer who was in charge became enraged, beat Singh and his friend, and
warned them that if they continued their sexual relationship, they would be arrested and
likely killed. Singh was detained until his father paid a bribe for his release the next day.
He was then hospitalized for about a week. Several days after he was released from the
hospital, Singh left India.
An IJ held a hearing on the merits of Singh’s application and subsequently issued
a written decision denying all relief. The IJ determined that Singh’s testimony was not
credible and that he had failed to adequately corroborate his claim; thus, Singh was not
entitled to asylum. The IJ concluded that because Singh’s asylum claim failed, his
withholding of removal claim necessarily failed. Finally, the IJ determined that Singh
was not entitled to CAT relief because he had not shown that he would likely be
subjected to torture if he returned to India.
The BIA dismissed Singh’s subsequent appeal, affirming the IJ’s adverse
credibility determination and denial of all forms of requested relief. The BIA concluded
that because Singh had failed to challenge the IJ’s corroboration finding in his appeal, it
would not disturb the IJ’s conclusion. Singh timely petitioned for review.
II.
We have jurisdiction to review Singh’s final order of removal pursuant to 8 U.S.C.
3
§ 1252(a)(1). Where, as here, the BIA affirmed and partially reiterated the IJ’s
discussions and determinations, we review both decisions. See Sandie v. Att’y Gen., 562
F.3d 246, 250 (3d Cir. 2009). We review the agency’s factual findings for substantial
evidence. See Chen v. Gonzales,
434 F.3d 212, 216, 220 (3d Cir. 2005). Under this
deferential standard of review, we must uphold those findings “unless the evidence not
only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477,
483-84 (3d Cir. 2001).
An applicant for asylum has the burden of credibly and persuasively establishing
that he is unable or unwilling to return to his home 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.” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R.
§ 1208.13(a); Abdille, 242 F.3d at 482. Under the REAL ID Act of 2005, an IJ may
assess an applicant’s credibility based on “the totality of circumstances, and all relevant
factors,” including:
the demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s . . . account, the consistency between
the applicant’s . . . written and oral statements (whenever made and whether
or not under oath, and considering the circumstances under which the
statements were made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record (including the
reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's
claim, or any other relevant factor.
8 U.S.C. § 1229a(c)(4)(C); see also Abulashvili v. Att’y Gen., 663 F.3d 197, 202 n.7 (3d
4
Cir. 2011).
Singh primarily contests the agency’s determination that his testimony was not
credible. The agency’s adverse credibility determination relied primarily on what it
described as a “central omission”: Singh told the asylum officer at his credible fear
interview that Congress party members attacked and kidnapped him solely because of his
political opinion, and that they then falsely accused him and his friend of engaging in a
sexual act so that the police would attack them as well, in contrast to his later account in
his asylum application and at his hearing before the IJ. A.R. at 39. Singh’s explanation
for this inconsistency at his hearing was that he was confused and scared after traveling
through the jungle to the United States several weeks prior, which the IJ found to be
insufficient because the asylum officer had told Singh how important it was to be truthful
in the interview and that it could be his only opportunity to explain what had happened to
him. A.R. at 39.
The IJ also described numerous other inconsistencies, including that: (1) Singh’s
account of his injuries from the attacks conflicted with the medical document he
submitted to support his application, and when he was asked to clarify a discrepancy he
remained silent; (2) Singh stated in his asylum application and his hearing testimony that
the police officer who beat him first threatened him because of his political party
membership and told him to leave his party before the Congress party members arrived,
but did not include this information in his original asylum statement; and (3) Singh’s
hearing testimony about when he told his brother about his sexual orientation directly
5
conflicted with his brother’s testimony. The IJ described Singh’s “overall demeanor” as
“unpersuasive” and found his testimony to be “vague and non-responsive” during the
hearing. A.R. at 42. Finally, the IJ found that several elements of Singh’s narrative
account of the day that he was attacked to be “inherently implausible.” 1 A. at 43.
Singh argues on appeal that the BIA failed to consider the totality of the
circumstances when it made its adverse credibility determination. He maintains that he
was afraid and ashamed of his identity at his credible fear interview, that he grew up in a
rural community and received less than a high school education, and that he was
unrepresented by counsel at his interview. He also claims that the medical document
inconsistency must have been due to a typographical error on the document he submitted,
although he does not address his silence to the IJ’s question about this issue. He argues
that the inconsistency with his brother’s testimony is trivial as it was an easy detail to
forget and thus should not have been considered. He also argues that the IJ’s plausibility
analysis is speculative.
Based on the “totality of the circumstances” and “all relevant factors,” substantial
evidence supports the agency’s conclusion. The record contains numerous significant
discrepancies, and we agree that Singh’s explanations for them do not compel disturbing
the agency’s determination. See Alimbaev v. Attorney Gen. of United States, 872 F.3d
1
Specifically, the IJ noted that Singh had not plausibly explained how Congress party
members discovered him and his friend in the farmhouse, or how Singh’s alleged
attackers arrived at the police station so soon after Singh and his friend arrived without
being seen while Singh and his friend fled. See A.R. at 43.
6
188, 196 (3d Cir. 2017) (“[W]hen our Court is called to evaluate an IJ’s credibility
determination that has been adopted by the BIA, we do so with exceptional deference”).
The agency’s adverse credibility determination is a sufficient basis on which to deny
Singh’s asylum claim. 2 See Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (“An
alien’s credibility, by itself, may satisfy his burden, or doom his claim.”). The agency
also correctly determined that Singh’s withholding of removal claim necessarily failed
because his asylum claim failed. See Guo v. Ashcroft,
386 F.3d 556, 561 n.4 (3d Cir.
2004).
Finally, Singh argues that the IJ’s adverse credibility determination should not
have affected the adjudication of his CAT claim and contends that the other evidence he
presented should have been sufficient to grant him CAT relief. A petitioner may
establish his eligibility for CAT relief based on evidence independent of his testimony.
See Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003). Here, however, the
relevance of the country conditions and other background documentation Singh put
forward depends on his credible testimony. See A.R. at 4. The other evidence alone does
not substantiate a claim that Singh would face torture if he returned to India. Because
Singh has not suggested that he might be tortured for reasons unrelated to his asylum and
withholding of removal claims, we conclude that the agency properly denied his CAT
2
Although Singh also challenges the IJ’s conclusion that he had insufficiently
corroborated his claims in his briefing, he did not argue this issue before the BIA in his
counseled brief. See A.R. at 7-19. We cannot address his argument, as he waived it by
failing to raise it before the BIA. See Abdulrahman v. Ashcroft,
330 F.3d 587, 595 (3d
Cir. 2003).
7
claim. Cf. Mansour v. I.N.S., 230 F.3d 902, 908 (7th Cir. 2000) (concluding that a “prior
adverse credibility determination [was] not necessarily significant” where a petitioner’s
asylum claim was based a different ground than his CAT claim).
Accordingly, we will deny Singh’s petition for review.
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