Singh v. Barr ( 2020 )

18-544
Singh v. Barr
BIA
Hom, IJ
A208 562 729
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 20th day of October, two thousand twenty.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 DALJIT SINGH,
14 Petitioner,
15
16 v. 18-544
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard W. Chen New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Linda S. Wernery,
27 Assistant Director; Thankful T.
28 Vanderstar, Attorney, Office of
29 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is GRANTED.
7 Petitioner Daljit Singh, a native and citizen of India,
8 seeks review of a February 1, 2018, decision of the BIA
9 affirming a May 25, 2017, decision of an Immigration Judge
10 (“IJ”) denying Singh’s application for asylum, withholding of
11 removal, and relief under the Convention Against Torture
12 (“CAT”). In re Daljit Singh, No. A 208 562 729 (B.I.A. Feb.
13 1, 2018), aff’g No. A 208 562 729 (Immig. Ct. N.Y. City May
14 25, 2017). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed the IJ’s decision as modified and
17 supplemented by the BIA’s decision and therefore consider
18 only the adverse credibility determination. See Yan Chen v.
19 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
20 of review are well established. See 8 U.S.C. § 1252(b)(4);
21 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)
22 (reviewing adverse credibility determination for substantial
23 evidence).
2
1 The agency may, considering the totality of the
2 circumstances, base a credibility finding on an asylum
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of his account, and inconsistencies in his
5 statements or between his statements and other evidence,
6 without regard to whether they go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
8 Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008). We
9 “defer . . . to an IJ’s credibility determination unless,
10 from the totality of the circumstances, it is plain that no
11 reasonable fact-finder could make such an adverse credibility
12 ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
13 891 F.3d at 76. The agency’s determination that Singh was
14 not credible as to his claim that he was beaten on one
15 occasion by rival party members based on his role in the Akali
16 Dal Mann (“ADM”) party is not supported by substantial
17 evidence.
18 The agency’s adverse credibility determination relied on
19 three conflicts in the record. The first was between Singh’s
20 testimony and his credible fear interview as to whether his
21 attackers were affiliated with only the Akali Dal Badal
22 (“Badal”) party, or with both the Badal party and the Bhartia
3
1 Janata Party (“BJP”). During his credible fear interview,
2 Singh testified that his attackers drove a vehicle with
3 symbols for both parties, and that the parties were in a
4 coalition with each other, but that the attackers were “Badal
5 party workers.” CAR 337-38. In his testimony, Singh claimed
6 that his attackers had a dual affiliation based on the same
7 facts. Because the difference between these accounts is, at
8 most, a difference in emphasis, it does not lend significant
9 support to the adverse credibility determination. See Hong
10 Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018) (“A
11 trivial inconsistency or omission that has no tendency to
12 suggest a petitioner fabricated his or her claim will not
13 support an adverse credibility determination.”); Gurung v.
14 Barr, 929 F.3d 56, 61 (2d Cir. 2019) (“[T]rivial differences
15 in the wording of statements describing the same event are
16 not sufficient to create inconsistencies[,] . . . especially
17 . . . where an immigrant applicant is relying on an
18 interpreter to convey his story . . . .”).
19 The two remaining inconsistencies that the agency relied
20 on concerned whether Singh encountered Peruvian authorities
21 after entering Peru en route to the United States, and whether
22 he was traveling with a companion. The Government submitted
4
1 a TECS Person Query, which reported without further
2 explanation that Singh “and his co-traveler were encountered
3 in Peru.” CAR 117. Contrary to the agency’s conclusion,
4 Singh did not testify that he never encountered Peruvian
5 authorities, but only that he was never “caught” or detained
6 by those authorities; accordingly, there was no conflict on
7 that point. Singh also testified that he traveled alone.
8 The agency did not explain why Singh’s explanation of the
9 conflict between his testimony and the TECS Person Query—that
10 there was another person present at the time of his encounter
11 with Peruvian authorities, but they were not traveling
12 together—was not convincing. Because the report may well
13 have been based on Singh’s proximity to another person, and
14 there is no reason to believe that the authorities making the
15 report (or the “co-traveler”) communicated with Singh in a
16 language he understood, Singh’s failure to explain the report
17 also does not lend significant support to the adverse
18 credibility determination. Cf. Hong Fei Gao, 891 F.3d at 81
19 (applicant’s failure to explain a third party omission has
20 limited probative value where it is not inconsistent with the
21 applicant’s own statements).
22 After identifying errors in an adverse credibility
5
1 determination, we “affirm only if (a) the agency offered a
2 clearly independent and sufficient ground for its ruling, one
3 that is not affected by any erroneous adverse credibility
4 findings, or (b) the evidentiary record includes statements
5 that are so inconsistent that we can be confident that the
6 agency would not accept any kind of explanation.” Gurung,
7 929 F.3d at 62. Neither of these circumstances is present
8 here. Although the IJ made an alternative finding that
9 Singh’s account, even if credible, did not establish past
10 harm rising to the level of persecution or a well-founded
11 fear of future persecution, that finding is not before us
12 because the BIA did not rely on it. See Yan Chen, 417 F.3d
13 at 271.
14 For the foregoing reasons, the petition for review is
15 GRANTED, the BIA’s decision is VACATED, and the case is
16 REMANDED. All pending motions and applications are DENIED
17 and stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6