Singh v. Garland ( 2023 )

21-6472
Singh v. Garland
BIA
A201 105 722
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.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 2nd day of May, two thousand twenty-
4 three.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RAYMOND J. LOHIER, JR.,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 CHARNJIT SINGH,
14 Petitioner,
15
16 v. 21-6472
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Esq., Law Office of Jaspreet
24 Singh, Richmond Hill, NY.
1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant
2 Attorney General; Carl McIntyre, Assistant
3 Director; Nancy E. Friedman, Senior
4 Litigation Counsel, Office of Immigration
5 Litigation, United States Department of
6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Charnjit Singh, a native and citizen of India, seeks review of an
11 August 16, 2021, decision of the BIA denying his motion to reopen. In re Charnjit
12 Singh, No. A 201 105 722 (B.I.A. Aug. 16, 2021). We assume the parties’ familiarity
13 with the underlying facts and procedural history.
14 We review the BIA’s denial of a motion to reopen for abuse of discretion,
15 but review adverse credibility determinations and findings regarding country
16 conditions evidence for substantial evidence, and ineffective
17 assistance of counsel claims de novo. See Esposito v. INS, 987 F.2d 108, 111 (2d Cir.
18 1993) (“A reviewing court uses its own judgment as to whether counsel was
19 effective . . . .”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (adverse
20 credibility determination); Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir.
21 2008) (motions to reopen and country conditions).
2
1 It is undisputed that the July 2019 motion was untimely filed more than 90
2 days after the final order of removal in June 2018. See 8 U.S.C. § 1229a(c)(7)(C)(i)
3 (providing 90-day deadline for motions to reopen); 8 C.F.R. § 1003.2(c)(2) (same).
4 We find no error in the BIA’s conclusion that Singh did not satisfy an exception to
5 the deadline. The deadline does not apply if the noncitizen moves to reopen to
6 apply for asylum based on “changed country conditions arising in the country of
7 nationality” if those conditions are material to the alien’s asylum claim. 8 U.S.C.
8 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). And the time to file may be
9 equitably tolled based on ineffective assistance of counsel. See Rashid v. Mukasey,
10 533 F.3d 127, 130–31 (2d Cir. 2008).
11 Singh did not satisfy either exception because his motion to reopen was
12 based on the same alleged political activities and past persecution as his original
13 claim, and he did not produce evidence to overcome the underlying adverse
14 credibility determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d
15 Cir. 2007) (upholding BIA’s decision not to credit new documentary evidence
16 given underlying adverse credibility determination); Kaur v. BIA, 413 F.3d 232,
17 233–34 (2d Cir. 2005) (finding no abuse of discretion in BIA’s conclusion that
18 evidence filed with a motion was not material where it did not rebut underlying
3
1 adverse credibility determination); Matter of F–S–N–, 28 I. & N. Dec. 1, 3 (B.I.A.
2 2020) (“[T]o prevail on a motion to reopen alleging changed country conditions
3 where the persecution claim was previously denied based on an adverse
4 credibility finding in the underlying proceedings, the respondent must either
5 overcome the prior determination or show that the new claim is independent of
6 the evidence that was found to be not credible.”). Singh does not dispute the
7 BIA’s finding that he made no new allegations independent of his original claim
8 that he would be persecuted because of his membership in the Shiromani Akali
9 Dal Mann (“Mann”) Party. Moreover, the BIA addressed Singh’s challenges to
10 the underlying adverse credibility determination and reasonably found no clear
11 error in that determination.
12 As the BIA concluded, the inconsistency findings are supported by the
13 record. Singh testified that the Congress Party kidnapped him in 2009, but did
14 not physically harm him during that incident; but his written declaration alleged
15 that he was beaten many times. The immigration judge (“IJ”) was not compelled
16 to accept Singh’s explanation that he “remembered later” that he was injured,
17 especially because he had to be prompted multiple times for an explanation and
18 was initially unresponsive. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
4
1 (“A petitioner must do more than offer a plausible explanation for his inconsistent
2 statements to secure relief; he must demonstrate that a reasonable fact-finder
3 would be compelled to credit his testimony.” (quotation marks omitted)). A
4 hospital record corroborating a May 2009 injury added inconsistency given
5 Singh’s testimony that he was not physically harmed.
6 The BIA also reasonably concluded that Singh’s omission of four incidents
7 of persecution during an interview and one incident from his written declaration
8 further undermined his credibility. While omissions, particularly trivial ones, are
9 less probative of credibility than inconsistencies, the BIA did not err in relying on
10 these omissions because they were central to Singh’s claim of past persecution.
11 See Hong Fei Gao, 891 F.3d at 78 (“[T]he probative value of a witness’s prior silence
12 on particular facts depends on whether those facts are ones the witness would
13 reasonably have been expected to disclose.”). The inconsistencies and omissions
14 together provided substantial evidence for the adverse credibility determination.
15 See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single
16 inconsistency might preclude an alien from showing that an IJ was compelled to
17 find him credible. Multiple inconsistencies would so preclude even more
18 forcefully.”). Accordingly, given the adverse credibility determination, Singh did
5
1 not establish that the BIA should credit his new allegation that political opponents
2 and the police were still looking for him in India, and his allegation of worsening
3 conditions for Mann Party members was not material. See Kaur, 413 F.3d at 234
4 (upholding agency’s determination “that the evidence submitted by petitioner in
5 support of her motion was not ‘material’ because it did not rebut the adverse
6 credibility finding that provided the basis for the IJ’s denial of petitioner’s
7 underlying asylum application”).
8 Singh’s failure to rebut the adverse credibility determination is also
9 dispositive of his claim for equitable tolling based on ineffective assistance of
10 counsel. The doctrine of equitable tolling provides an exception to the deadline
11 if a movant demonstrates ineffective assistance of counsel. See Rashid, 533 F.3d at12 130–31. To establish ineffective assistance, Singh had to establish prejudice, i.e.,
13 that the outcome would have been different had his former attorney timely filed a
14 brief on appeal. See Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir. 2010)
15 (concluding that applicant failed to state ineffective assistance claim because he
16 failed to show “that the outcome of his removal proceedings would have been any
17 different”). Because, as discussed above, the BIA considered Singh’s challenges
18 to the adverse credibility determination and the record supports that
6
1 determination, Singh has not established that the BIA would have found otherwise
2 had it considered these same arguments on appeal from the IJ’s decision.
3 Given that Singh did not establish an exception to the 90-day deadline based
4 on either changed conditions in India or equitable tolling, the BIA did not abuse
5 its discretion by denying his motion to reopen as untimely. See 8 U.S.C.
6 § 1229a(c)(7)(C); Rashid, 533 F.3d at 130–31.
7 For the foregoing reasons, the petition for review is DENIED. All pending
8 motions and applications are DENIED and stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
7