Singh v. Garland ( 2022 )

20-1614
Singh v. Garland
BIA
Thompson, IJ
A208 565 197
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 24th day of October, two thousand twenty-
two.
PRESENT:
JON O. NEWMAN,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
SANDEEP SINGH,
Petitioner,
v. 20-1614
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mercedes Altman, Law Office of
Mercedes Altman, Westbury, NY.
FOR RESPONDENT: Brian Boynton, Assistant Attorney
General; Zoe J. Heller, Senior
Litigation Counsel; Enitan O.
Otunla, 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 Sandeep Singh, a native and citizen of India,
seeks review of an April 20, 2020 decision of the BIA,
affirming a July 12, 2018 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 Sandeep Singh, No. A208 565 197 (B.I.A.
Apr. 20, 2020), aff’g No. A208 565 197 (Immigr. Ct. N.Y. City
July 12, 2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
Under the circumstances, we have considered the decision
of the IJ as modified by the BIA, i.e., minus the burden
finding the BIA did not reach. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review
the agency’s adverse credibility determination for
substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d
267, 76 (2d Cir. 2018), and “the administrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and
oral statements . . . , the internal consistency of each such
statement, [and] 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). “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, 891 F.3d at 76. Substantial evidence supports the
agency’s determination that Singh was not credible as to his
claim that members of the Akali Dal Badal (“Badal”) Party
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beat and threatened to kill him if he did not leave the
Simranjit Singh Mann (“Mann”) Party and join them.
The agency reasonably relied in part on the inconsistency
between Singh’s application and testimony regarding whether
Badal Party members first told him to leave his party in
September 2014, which was the month he joined the Mann Party,
or in January 2015, which was the month he was allegedly first
attacked. See 8 U.S.C. § 1158(b)(1)(B)(iii). Rather than
provide a compelling explanation for this inconsistency,
Singh became evasive and repeatedly changed his testimony as
to whether the first encounter occurred in September or in
January. 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)). We do not reach Singh’s argument that the
inconsistency was a result of difficulties in translation
because he did not exhaust that allegation before the agency.
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
n.1, 122 (2d Cir. 2007). In any event, this explanation would
not resolve the inconsistency identified by the agency, since
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the translation difficulties alleged by Singh concerned the
inconsistency between his application and his initial
testimony, whereas the agency took issue with the internal
inconsistencies that existed within Singh’s testimony.
The agency also reasonably relied on the fact that the
affidavit submitted by Singh’s mother in support of his
application made no mention of the alleged murder of Singh’s
father by Badal Party members. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 78–79.
Although “omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence
and testimony,” the agency may rely on the omission of facts
“the witness would reasonably have been expected to
disclose.” Hong Fei Gao, 891 F.3d at 78. Because Singh’s
mother stated that Badal Party members had come to their
family home and harassed them about Singh’s whereabouts, it
was reasonable for the agency to expect that she would have
revealed that her husband was murdered in one of those visits.
See id. Singh’s explanation that his mother described only
what happened to Singh was belied by her affidavit, which
also discussed the Badal Party harassing her. See Majidi,
430 F.3d at 80.
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The agency also reasonably found implausible Singh’s
testimony that there were no press reports of his father’s
murder because the press does not report the Badal Party’s
criminal activities. See 8 U.S.C. § 1158(b)(1)(B)(iii).
That finding is supported by the record, which includes
articles discussing Badal Party members’ criminal acts and
states that there is an independent media that expresses a
variety of views without restriction. See Siewe v. Gonzales,
480 F.3d 160, 168–69 (2d Cir. 2007) (holding that we will
uphold IJ’s inference so long as it is “tethered” to “record
facts, or even a single fact, viewed in the light of common
sense and ordinary experience”).
The inconsistencies, omission, and implausibility
constitute substantial evidence for the adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 165–66; see also
Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
(“[E]ven a single inconsistency might preclude an alien from
showing that an IJ was compelled to find him credible.
Multiple inconsistencies would so preclude even more
forcefully.”). The adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief
because all three claims are based on the same factual
6
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57
(2d Cir. 2006).
We lack jurisdiction to consider Singh’s challenge to
the BIA’s decision to resolve his appeal in a single-member
decision. Kambolli v. Gonzales, 449 F.3d 454, 464–65 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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