Singh v. Barr ( 2020 )

18-372
Singh v. Barr
BIA
Hom, IJ
A205 421 884
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 22nd day of January, two thousand twenty.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 AMANPREET SINGH,
14
15 Petitioner,
16
17 v. 18-372
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
26 New York, NY.
27
28 FOR RESPONDENT: Joseph H. Hunt, Assistant
29 Attorney General; Bernard A.
30 Joseph, Senior Litigation Counsel;
31 Jonathan K. Ross, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of
3 Justice, Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is GRANTED.
9 Petitioner Amanpreet Singh, a native and citizen of
10 India, seeks review of a January 11, 2018, decision of the
11 BIA affirming an April 5, 2017, decision of an Immigration
12 Judge (“IJ”) denying his application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Singh, No. A 205 421 884 (B.I.A. Jan. 11,
15 2018), aff’g No. A 205 421 884 (Immig. Ct. N.Y. City Apr. 5,
16 2017). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 We have reviewed the IJ’s decision as modified by the
19 BIA; i.e., minus the IJ’s finding that even assuming
20 credibility, Singh did not establish eligibility for asylum
21 and related relief. See Xue Hong Hang v. U.S. Dep’t of
22 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The standards of
23 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2
1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)
2 (reviewing adverse credibility determination for substantial
3 evidence). “Considering the totality of the circumstances,
4 and all relevant factors, a trier of fact may base a
5 credibility determination on . . . the consistency between
6 the applicant’s . . . written and oral statements . . . , the
7 internal consistency of each such statement, [and] the
8 consistency of such statements with other evidence of record
9 . . . without regard to whether an inconsistency, inaccuracy,
10 or falsehood goes to the heart of the applicant’s claim . .
11 . .” 8 U.S.C. § 1158(b)(1)(B)(iii). We conclude that the
12 agency has not identified substantial evidence to support the
13 adverse credibility determination.
14 The agency based its adverse credibility determination
15 on two claimed inconsistencies. First, the agency identified
16 one inconsistency between Singh’s testimony that he was
17 treated with painkillers for his injuries and a medical report
18 that indicated that he received painkillers, antibiotics, and
19 intravenous fluids. Second, while Singh testified he
20 informed S. Narinder Singh, a leader of the political party
21 Singh belonged to, about the two attacks, the agency relied
3
1 on the fact that a letter from S. Narinder Singh did not
2 specifically mention his attacks by members of a rival party,
3 instead it only confirmed Singh’s party membership and that
4 Singh had been persecuted by a rival political party. We
5 have cautioned against putting excessive weight on a third-
6 party’s omissions, particularly where, as here, the third
7 party’s statement does not contradict the applicant’s
8 statements. See Hong Fei Gao, 891 F.3d at 81 (“Although an
9 omission by a third party may form a basis for an adverse
10 credibility determination . . . under these circumstances—
11 where a third party’s omission creates no inconsistency with
12 an applicant’s own statements—an applicant’s failure to
13 explain third-party omissions is less probative of
14 credibility than an applicant’s failure to explain his or her
15 own omissions.”).
16 Given the agency’s error in relying on this finding, we
17 conclude that remand is necessary because the single
18 inconsistency regarding Singh’s medical treatment does not,
19 under the totality of the circumstances, constitute
20 substantial evidence for an adverse credibility
21 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei
4
1 Gao, 891 F.3d at 76; cf. Xiu Xia Lin v. Mukasey, 534 F.3d
2 162, 167 (2d Cir. 2008) (“an IJ may rely on any inconsistency
3 or omission in making an adverse credibility determination as
4 long as the ‘totality of the circumstances’ establishes that
5 an asylum applicant is not credible.” (quoting
6 § 1158(b)(1)(B)(iii))). Because the adverse credibility
7 determination was the sole basis for the agency’s denial of
8 Singh’s claim of past persecution, we remand for further
9 consideration of whether Singh met his burden of proof for
10 past persecution, such that he is entitled to a presumption
11 of future persecution. See 8 C.F.R. § 1208.13(b)(1).
12 For the foregoing reasons, the petition for review is
13 GRANTED, the BIA’s decision is VACATED, and the case is
14 REMANDED for further proceedings consistent with this
15 order.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe,
18 Clerk of Court
5