Singh v. Barr ( 2020 )

18-325
Singh v. Barr
BIA
Christensen, IJ
A205 429 327
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of December, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 DALJIT SINGH,
14 Petitioner,
15
16 v. 18-325
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Daljit Singh, pro se, S. Richmond
24 Hill, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Jessica A.
28 Dawgert, Senior Litigation
29 Counsel, Jacob A. Bashyrov, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
5
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DISMISSED in part and DENIED in part.
11 Petitioner Daljit Singh, a native and citizen of India,
12 seeks review of a January 23, 2018, decision of the BIA
13 affirming a May 29, 2015, decision of an Immigration Judge
14 (“IJ”) denying asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Daljit
16 Singh, No. A205 429 327 (B.I.A. Jan 23, 2018), aff’g No. A205
17 429 327 (Immig. Ct. N.Y. City May 29, 2015). We assume the
18 parties’ familiarity with the underlying facts and procedural
19 history in this case.
20 Under the circumstances of this case, we have reviewed
21 both the BIA’s and the IJ’s decisions. See Wangchuck v.
22 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We
23 dismiss the petition as to asylum. An alien is ineligible
24 for asylum “unless the alien demonstrates by clear and
25 convincing evidence that the application has been filed
2
1 within 1 year after the date of the alien’s arrival in the
2 United States.” 8 U.S.C. § 1158(a)(2)(B). Our jurisdiction
3 to review the agency’s findings regarding the timeliness of
4 an asylum application is limited to “constitutional claims or
5 questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id.
6 § 1158(a)(3). The agency’s determination that Singh was not
7 credible as to his date of entry into the United States is
8 based on fact-finding and not subject to review. See Xiao
9 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333 (2d Cir.
10 2006) (adverse credibility determinations are factual
11 findings).
12 We deny the petition as to withholding of removal and
13 CAT relief because the adverse credibility determination is
14 supported by substantial evidence. See 8 U.S.C.
15 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
16 Cir. 2018) (reviewing adverse credibility determination under
17 substantial evidence standard). “Considering the totality
18 of the circumstances, and all relevant factors, a trier of
19 fact may base a credibility determination on the demeanor,
20 candor, or responsiveness of the applicant or witness, . . .
21 the consistency between the applicant’s . . . written and
22 oral statements . . . , the internal consistency of each
3
1 statement, the consistency of such statements with other
2 evidence of record . . . and any inaccuracies or falsehoods
3 in such statements, without regard to whether an
4 inconsistency, inaccuracy, or falsehood goes to the heart of
5 the applicant’s claim, or any other relevant factor.” 8
6 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia Lin
10 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
11 Gao, 891 F.3d at 76. Singh alleged that he was attacked in
12 1990 and 2009 and arrested in 2010 on account of his support
13 for the Akali Dal Mann Party (“Mann Party”). We find
14 substantial evidence for the adverse credibility
15 determination given Singh’s lack of knowledge about his
16 party, inconsistencies between his testimony and documentary
17 evidence regarding the first attack, inconsistencies within
18 his documentary evidence, and a lack of corroboration.
19 The IJ reasonably relied on Singh’s lack of familiarity
20 and inability to provide basic information about the Mann
21 Party, particularly as some of the information he was
22 unfamiliar with at the hearing was included in his
4
1 application. See 8 U.S.C. § 1158(b)(1)(B)(iii) (allowing
2 fact-finder to rely on “demeanor, candor, or
3 responsiveness”); Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.
4 2006) (explaining, in context of religious persecution claim,
5 that lack of doctrinal knowledge may render a claim suspect
6 where the record indicates that the applicant should have
7 such knowledge).
8 The agency also reasonably relied on inconsistencies
9 between Singh’s testimony and documentary evidence about his
10 1990 attack. See 8 U.S.C. § 1158(b)(1)(B)(iii). Singh
11 testified that he was 23 or 24 at the time of that attack,
12 but he submitted identity documents showing he would have
13 been only 13 years old at that time. Moreover, Singh
14 testified that he did not know his assailants but his
15 application reported that his uncles, who belonged to a rival
16 political party, were responsible. The IJ was not required
17 to credit Singh’s explanation that he had not seen his uncles,
18 as he mentioned them in his application. See Majidi v.
19 Gonzales, 430 F.3d 77, 80 (2d Cir. 2015) (“A petitioner must
20 do more than offer a plausible explanation for his
21 inconsistent statements to secure relief, he must demonstrate
5
1 that a reasonable fact-finder would be compelled to credit
2 his testimony.” (internal quotation marks omitted)).
3 The agency also reasonably relied on inconsistences in
4 Singh’s documentary evidence. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167
6 (allowing fact-finder to rely on even “collateral or
7 ancillary” inconsistencies so long as the “totality of the
8 circumstances supports the adverse credibility
9 determination). Singh’s identity documents used differing
10 spellings of his name, and his age on his election card
11 conflicted with his birthdate on his birth certificate and
12 driver’s license.
13 The agency also reasonably concluded that Singh failed
14 to rehabilitate his testimony with reliable corroborating
15 evidence. “An applicant’s failure to corroborate his or her
16 testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to
18 rehabilitate testimony that has already been called into
19 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
20 2007). The agency properly afforded diminished weight to his
21 documentary evidence because it contained inconsistencies
22 (identity documents), did not corroborate specific incidents
6
1 of past harm and the author was unavailable for cross-
2 examination (Mann Party letter), and were not contemporaneous
3 (Mann Party membership card). See Y.C. v. Holder, 741 F.3d
4 324, 332 (2d Cir. 2013) (“We defer to the agency’s
5 determination of the weight afforded to an alien’s
6 documentary evidence.”); see also In re H-L-H- & Z-Y-Z-, 25
7 I. & N. Dec. 209, 215 (BIA 2010) (letters from alien’s friends
8 and family were insufficient to provide substantial support
9 for alien’s claims because they were from interested
10 witnesses not subject to cross-examination), overruled on
11 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
12 38 (2d Cir. 2012). Singh also failed to provide reasonably
13 available corroborating evidence: he testified that he had
14 medical evidence of treatment after the 1990 attack, but he
15 did not produce it; and he did not provide letters from any
16 family members, including form his father with whom he was
17 allegedly attacked in 2009 and who helped him gather
18 documentation for his application. See 8 U.S.C. § 1252(b)(4)
19 (stating that a court may not reverse a finding that evidence
20 is available unless a fact-finder would be compelled to find
21 it unavailable); Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d
22 Cir. 2009) (“[T]he alien bears the ultimate burden of
7
1 introducing [corroborating] evidence without prompting from
2 the IJ.”). Moreover, none of Singh’s documents corroborated
3 the alleged attacks or arrest that formed the basis for his
4 claim.
5 Although we decline to rely on Singh’s omission from his
6 application of his assertion that he reported his attacks to
7 the police, see Hong Fei Gao, 891 F.3d at 78, 82, the
8 inconsistencies and corroboration issues discussed above
9 provide substantial evidence for the adverse credibility
10 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
11 Lin, 534 F.3d at 167; Gurung v. Barr, 929 F.3d 56, 62 (2d
12 Cir. 2019) (noting that remand to the agency is futile
13 “whenever the reviewing panel is confident that the agency
14 would reach the same result upon a reconsideration cleansed
15 of errors”). The adverse credibility determination is
16 dispositive of withholding of removal and CAT relief because
17 both forms of relief are based on the same discredited factual
18 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
19 Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DISMISSED in part as to asylum and DENIED in remaining part
8
1 as to withholding of removal and CAT relief. All pending
2 motions and applications are DENIED and stays VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
9