Singh v. Holder , 390 F. App'x 51 ( 2010 )

09-3058-ag
Singh v. Holder
BIA
Abrams, IJ
A093 394 054
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 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York,
on the 25 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
JOSÉ A. CABRANES,
Circuit Judges.
_______________________________________
HARJIT SINGH,
Petitioner,
v. 09-3058-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Genet Getachew, Brooklyn, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
James A. Hunolt, Senior Litigation
Counsel; Aviva L. Poczter, Trial
Attorney, Office of Immigration
Litigation, Washington D.C.
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
GRANTED.
Petitioner Harjit Singh, a native and citizen of India,
seeks review of the July 10, 2009, order of the BIA affirming
the April 23, 2008, decision of Immigration Judge (“IJ”)Steven
R. Abrams denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Harjit Singh, No. A093 394 054 (B.I.A. July 10,
2009), aff’g No. A093 394 054 (Immig. Ct. N.Y. City April 23,
2008). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA. See Dong Gao v. BIA, 482 F.3d
122, 125 (2d Cir. 2007). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The IJ found that the petitioner had not established the
timeliness of his asylum application and therefore pretermitted
the asylum claim. However, the IJ also considered the merits
of the asylum claim and rejected it. Without considering the
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timeliness issue, the BIA agreed with the IJ that Singh failed
to establish his eligibility for asylum, withholding of removal,
and CAT relief based solely on his failure to sufficiently
corroborate his otherwise credible testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(ii); see also Kyaw Zwar Tun v. U.S. INS, 445
F.3d 554, 563 (2d Cir. 2006) (holding that “[a]n applicant may
be required to provide any reasonably available documentation
to corroborate the elements of her claim, or explain why such
documentation is unavailable, and the [agency] may rely on the
failure to do so in finding that the applicant has not met her
burden of proof”). In doing so, it affirmed the IJ’s finding
that none of the documents in the record indicated that Singh
had ever been arrested, detained, or beaten by the Indian
police. However, as Singh contends, neither the IJ’s nor the
BIA’s decisions indicate that they considered an affidavit from
Parkash Kaur, the Sarpanch of Pandori Lubana village, stating
that Singh was arrested twice in 2003, and that the police
“tortured him during the time he was in custody.” While we
generally “presume that [the agency] has taken into account all
of the evidence before [it], unless the record compellingly
suggests otherwise,” see Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338 n.17 (2d Cir. 2006), the agency’s evident
failure to consider documentary evidence in the record
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constitutes reversible error, see Jorge-Tzoc v. Gonzales, 435
F.3d 146, 150 (2d Cir. 2006); see also Yan Chen v. Gonzales, 417
F.3d 268, 272-73 (2d Cir. 2005). In this case, we cannot presume
that the agency considered the Kaur affidavit in view of the
IJ’s explicit statement that “[w]e do not have any documents
that indicate that [petitioner] had in fact been beaten at any
point in time.” Because we cannot predict with confidence that
the BIA would reach the same conclusion, i.e., that Singh failed
to adequately corroborate his claim, if it considered the Kaur
affidavit describing his arrest and torture, remand to the BIA
is appropriate. Cf. Mamadou Aliou Diallo v. U.S. Dep’t of
Justice, 548 F.3d 232, 235 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
GRANTED and the proceedings REMANDED to the BIA for further
consideration consistent with this order. 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
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