Singh v. Lynch , 661 F. App'x 137 ( 2016 )

16-358
Singh v. Lynch
BIA
Christensen, IJ
A201 291 500
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of November, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 BALWINDER SINGH,
14 Petitioner,
15
16 v. 16-358
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Paul
28 Fiorino, Senior Litigation Counsel;
29 Judith R. O’Sullivan, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Balwinder Singh, a native and citizen of India,
6 seeks review of a January 6, 2016, decision of the BIA, affirming
7 a May 20, 2014, decision of an Immigration Judge (“IJ”) denying
8 Singh’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Balwinder Singh, No. A201 291 500 (B.I.A. Jan. 6, 2016), aff’g
11 No. A201 291 500 (Immig. Ct. N.Y. City May 20, 2014). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
18 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Singh’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on an applicant’s
22 “demeanor, candor, or responsiveness,” the plausibility of his
23 account, and inconsistencies in his statements and evidence,
2
1 “without regard to whether” those inconsistencies go “to the
2 heart of the applicant’s claim.” 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
4 defer . . . to an IJ’s credibility determination unless, from
5 the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse credibility
7 ruling.” Xiu Xia Lin, 534 F.3d at 167. As discussed below,
8 the adverse credibility determination rests on substantial
9 evidence.
10 The agency reasonably relied on inconsistencies in Singh’s
11 testimony and other record evidence concerning his Shiromani
12 Akali Dal Party (“SAD”) membership—the heart of his claim of
13 persecution. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xian Tuan Ye
14 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A]
15 material inconsistency in an aspect of [an applicant’s] story
16 that served as an example of the very persecution from which
17 he sought asylum . . . afforded substantial evidence to
18 support the adverse credibility finding.”).
19 As the IJ found, Singh’s “vacillating testimony”
20 concerning how he came to possess a letter from SAD’s president
21 undermined his credibility. Singh submitted the letter to
22 confirm a matter central to his claim—his SAD membership.
23 Singh testified that he obtained the letter at the SAD office
3
1 on March 31, 2009, the same day he officially joined the party,
2 and asked for the letter because “his life was in danger.” The
3 IJ reasonably concluded that Singh’s testimony was implausible
4 and inconsistent: it strains credulity that Singh would have
5 feared harm based on his political opinion before he had joined
6 the party, particularly given his testimony that he had not been
7 harmed in any way before December 2009. See Wensheng Yan v.
8 Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (holding that “IJ is
9 entitled to consider whether the applicant’s story is
10 inherently implausible”). Moreover, the letter was dated
11 September 2012, and lists Singh’s New York address, making it
12 impossible for Singh to have personally obtained it in India
13 in 2009, as he testified. Finally, the letter does not describe
14 any of the three beatings Singh claims he had suffered; rather,
15 it is a generalized form letter that mentions Singh only in the
16 first and last paragraphs. The agency reasonably found these
17 discrepancies significant because the letter was the only
18 evidence of Singh’s SAD membership, and the omission of any
19 incidents of persecution undermined his credibility. See Xiu
20 Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission
21 are . . . functionally equivalent.”).
22 Singh argues that the agency erred in finding the letter
23 implausible, explaining that his family was threatened by
4
1 members of the opposition party before 2009. The agency was
2 not required to accept this explanation because it failed to
3 account for the fact that the letter was generalized and omitted
4 any incidents of persecution. See Majidi v. Gonzales, 430 F.3d
5 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
6 a plausible explanation for his inconsistent statements to
7 secure relief; he must demonstrate that a reasonable
8 fact-finder would be compelled to credit his testimony.”
9 (quoting Zhou Yun Zhang v. INS, 386 F.3d 77, 76 (2d Cir. 2004))).
10 The IJ’s adverse credibility determination was bolstered
11 by additional inconsistent and evasive testimony related to
12 Singh’s family members in the United States. “Evasiveness is,
13 of course, one of the many outward signs a fact-finder may
14 consider in evaluating demeanor and in making an assessment of
15 credibility.” Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.
16 2006). Singh first testified that he had no family members in
17 the United States. When pressed, Singh admitted that his
18 sister used to live in the United States and that he still has
19 one aunt residing here. Id. When confronted with his
20 application, which listed a brother residing in the United
21 States, Singh confirmed the accuracy of the information. The
22 IJ was not required to credit Singh’s explanations of confusion
23 and forgetfulness given that he included his brother’s
5
1 residence in his application and was asked multiple times about
2 his family in the United States. See Majidi, 430 F.3d at 80.
3 Having questioned Singh’s credibility, the agency did not
4 err in concluding that Singh’s corroborating evidence was
5 insufficient to rehabilitate his testimony. See Biao Yang v.
6 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
7 failure to corroborate his . . . testimony may bear on
8 credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has
10 already been called into question.”). The agency reasonably
11 accorded diminished weight to letters from another brother and
12 Singh’s father-in-law in India, as well as the letter from a
13 nursing home in India stating that Singh was treated there in
14 January 2011. The letters were prepared for the purpose of
15 litigation, the family letters were from interested parties not
16 subject to cross examination, and the nursing home letter was
17 written in 2012 and thus was not contemporaneous with the
18 treatment Singh allegedly received. See Matter of H-L-H- &
19 Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give
20 little weight to document drafted by interested witness not
21 subject to cross examination), rev’d on other grounds by Hui
22 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). “We defer
23 to the agency’s determination of the weight afforded to an
6
1 alien’s documentary evidence.” Y.C. v. Holder, 741 F.3d 324,
2 334 (2d Cir. 2013). Last, the IJ reasonably found
3 “particularly striking” the absence of testimony or written
4 statement from Singh’s brother in the United States in light
5 of Singh’s testimony that his brother knew what happened to him
6 in India. See Biao Yang, 496 F.3d at 273.
7 Given the multiple inconsistencies, Singh’s evasiveness,
8 and Singh’s failure to provide reliable corroboration, it
9 cannot be said “that no reasonable fact-finder could make such
10 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
11 That finding is dispositive of asylum, withholding of removal,
12 and CAT relief because Singha’s claims for all three forms of
13 relief are based on the same factual predicate. Paul v.
14 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
7