Singh v. Barr ( 2019 )


Menu:
  •     17-2914
    Singh v. Barr
    BIA
    Poczter, IJ
    A208 192 405
    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 1st day of May, two thousand nineteen.
    PRESENT:
    ROBERT D. SACK,
    CHRISTOPHER F. DRONEY,
    RICHARD J. SULLIVAN,
    Circuit Judges.
    _____________________________________
    SUKHJINDER SINGH, AKA RAJU THAPA
    Petitioner,
    v.                                           17-2914
    NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    FOR PETITIONER:                   Amy Nussbaum Gell, New York,
    NY.
    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
    Attorney General; Keith I.
    McManus, Assistant Director;
    Giovanni B. Di Maggio, Trial
    Attorney, 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 DENIED.
    Petitioner Sukhjinder Singh, a native and citizen of
    India, seeks review of an August 31, 2017, decision of the
    BIA affirming a November 15, 2016, decision of an Immigration
    Judge (“IJ”) denying his application for asylum, withholding
    of removal, and relief under the Convention Against Torture
    (“CAT”).     In re Sukhjinder Singh, No. A208 192 405 (B.I.A.
    Aug. 31, 2017), aff’g No. A208 192 405 (Immig. Ct. N.Y. City
    Nov. 15, 2016).    We assume the parties’ familiarity with the
    underlying facts, procedural history, and issues on appeal.
    Under the circumstances of this case, we have reviewed
    the IJ’s decision without considering the findings of the IJ
    that the BIA did not reach.        See Xue Hong Yang v. U.S. Dep’t
    of Justice, 
    426 F.3d 520
    , 522 (2d Cir. 2005).          The applicable
    standards of review are well established.               See 8 U.S.C.
    § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 
    891 F.3d 67
    , 76
    (2d Cir. 2018).
    “Considering the totality of the circumstances, and all
    relevant factors, a trier of fact may base a credibility
    determination     on   .   .   .   the   consistency    between   the
    2
    applicant’s . . . written and oral statements . . . , the
    internal consistency of each such statement, the consistency
    of such statements with other evidence of record . . . 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. § 1158(b)(1)(B)(iii); Xiu Xia Lin
    v. Mukasey, 
    534 F.3d 162
    , 163-64 (2d Cir. 2008).   Substantial
    evidence supports the agency’s determination that Singh was
    not credible as to (1) his claim that members of the Akali
    Dal Badal Party attacked him twice in India on account of his
    membership in the Shiromani Akali Dal Amritsar Party (“SADA”)
    and (2) his fear of similar harm in the future.
    The agency reasonably relied on Singh’s inconsistent
    descriptions of the attack he purportedly suffered in 2014.
    See 8 U.S.C. § 1158(b)(1)(B)(iii).   In his written statement,
    Singh asserted that Badal Party members punched, slapped, and
    kicked him.   However, he testified only that he was hit with
    sticks on the legs without mentioning being hit in any other
    manner.
    The agency also reasonably relied on Singh’s omission
    from his written statement of his later assertion that Badal
    Party members started threatening him when he joined SADA in
    2000 and threatened him several times before attacking him in
    3
    2014.   Although applicants need not list every incident or
    describe every detail in their application statements, the
    agency may rely on an omission of facts “that a credible
    petitioner would reasonably have been expected to disclose
    under the relevant circumstances.”          Hong Fei 
    Gao, 891 F.3d at 78-79
    .      The agency did not err in relying on Singh’s
    failure to mention that he was threatened several times over
    a period of fourteen years in his written statement because
    that statement described at length and in detail his volunteer
    activities    and    SADA’s     social   programs,     and     generally
    described the Badal Party’s intimidation of SADA members
    during that time yet failed to mention that Singh had been
    personally threatened.        See 
    id. at 78-79,
    82.          Singh could
    not compellingly explain his inconsistent statements.                See
    Majidi v. Gonzales, 
    430 F.3d 77
    , 80 (2d Cir. 2005) (“A
    petitioner must do more than offer a plausible explanation
    for his inconsistent statements to secure relief; he must
    demonstrate that a reasonable fact-finder would be compelled
    to   credit    his   testimony.”       (internal     quotation     marks
    omitted)).
    Having    questioned     Singh’s    credibility,        the   agency
    reasonably relied further on his failure to rehabilitate his
    testimony     with   reliable    corroborating     evidence.          “An
    4
    applicant’s failure to corroborate his or her testimony may
    bear on credibility, because the absence of corroboration in
    general makes an applicant unable to rehabilitate testimony
    that has already been called into question.”                     Biao Yang v.
    Gonzales, 
    496 F.3d 268
    , 273 (2d Cir. 2007).                       The agency
    reasonably    declined     to   afford    weight       to   affidavits     and
    letters from Singh’s relatives and acquaintances because the
    authors    were   interested    parties    or        were   unavailable    for
    cross-examination.       See Y.C. v. Holder, 
    741 F.3d 324
    , 334 (2d
    Cir. 2013) (deferring to agency’s decision to afford little
    weight to relative’s letter from China because it was unsworn
    and from an interested witness); In re H-L-H- & Z-Y-Z-, 25 I.
    & N. Dec. 209, 215 (B.I.A. 2010) (finding that letters from
    alien’s    friends   and   family   did        not    provide     substantial
    support for alien’s claims because they were from interested
    witnesses not subject to cross-examination), overruled on
    other grounds by Hui Lin Huang v. Holder, 
    677 F.3d 130
    , 133-
    38   (2d   Cir.   2012).    Further,      as    the     agency    noted,   the
    remaining personalized documents did not constitute evidence
    that Singh suffered or feared harm on account of his political
    opinion.
    Given Singh’s inconsistent statements and insufficient
    corroboration, the agency’s adverse credibility determination
    5
    is   supported    by   substantial      evidence.      See   8 U.S.C.
    § 1158(b)(1)(B)(iii).      Contrary to Singh’s argument, the
    credibility      determination    was    dispositive    of    asylum,
    withholding of removal, and CAT relief because all three
    claims were based on the same factual predicate.             See Paul
    v. Gonzales, 
    444 F.3d 148
    , 156-57 (2d Cir. 2006).
    For the foregoing reasons, the petition for review is
    DENIED.    As we have completed our review, any stay of removal
    that the Court previously granted in this petition is VACATED,
    and any pending motion for a stay of removal in this petition
    is DISMISSED as moot.     Any pending request for oral argument
    in this petition is DENIED in accordance with Federal Rule of
    Appellate Procedure 34(a)(2), and Second Circuit Local Rule
    34.1(b).
    FOR THE COURT:
    Catherine O’Hagan Wolfe
    Clerk of Court
    6