Singh v. Garland ( 2021 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 12, 2021
No. 19-60937
Lyle W. Cayce
Clerk
Daljinder Singh,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A215-908-418
Before Higginbotham, Southwick, and Willett, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:*
Daljinder Singh applied for asylum and protection under the
Convention Against Torture, claiming that he feared persecution in India
based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-
dominated political party. The presiding immigration judge (“IJ”) denied his
*
Judge Willett concurs in the stay only.
No. 19-60937
application, finding Singh not credible. The Board of Immigration Appeals
(“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and
moved for a stay of removal. We granted Singh an emergency stay of removal
pending further order. We now grant Singh a stay pending review of his
petition.
I
Singh was a political dissident in Punjab, India, where he was twice
assaulted by the party in power, the Bharatiya Janata Party (“BJP”), because
of his membership in the Mann Party. He alleges that he was first attacked
on June 1, 2018, while hanging posters for the Mann Party. Four people in
BJP t-shirts came over and told him to join their party. When he refused, they
started beating him. People nearby heard his screams and came to his aid,
causing the attackers to flee. Singh spent two days in the hospital receiving
treatment for a muscle tear in his thigh and other injuries. When Singh and
his father tried to report the attack to the police, the police refused to accept
his report because the BJP was the party in power. The police also threatened
to prosecute Singh for filing false charges if he returned to the police station.
Two months later, Singh was walking home when four BJP party
members forced him into their car and took him to a rural area where they
beat him with field hockey sticks and hit him in the face with a metal bangle.
Farmers in the area heard Singh screaming and came to his rescue. His
assailants fled, telling Singh they would kill him next time. After the attack,
Singh had a five-day hospital stay for injuries to his head, leg, and chin. After
being discharged, Singh did not report the attack to the police because of their
earlier threat. Instead, he stayed with his sister who lived about 45 miles from
his home. Singh’s father hired a smuggler, who brought Singh to Mexico.
Since leaving India, Singh claims that BJP members have attacked his father
twice and his mother once in their search for him.
2
No. 19-60937
At his asylum hearing, the IJ, Agnelis Reese, noted that “since
October [2019] when a wave of respondents from India have arrived, there
has been an emerging pattern and an eerie similarity between the statements
presented by the respondents in either credible fear proceedings or in their
asylum applications.” Singh’s claim, she asserted, presented the same fact
pattern:
The respondents all appear to be from small farms in, or small
towns or villages in India. They all say that they are farmers.
All of them appear to be in their early to mid-twenties. They all
leave with passports or arrangements made by family members.
Some of them know the amount of money paid, some don’t.
But before they leave their country, in general they say that
they had become members of the Mann party. And usually
within six to eight months of them joining the Mann party, they
are attacked by members of the BJP party. Almost without fail,
it is four people who come out of a vehicle, ask them to leave
their party and join theirs to sell drugs. If the person refuses,
they are beaten. Usually someone comes along and the beating
is stopped. But as they leave, they tell them that next time they
will kill them. Usually within a few months there is a second
encounter, usually with four people. And almost without fail,
during the second beating, farmers hear the screams or cries of
the respondents and then they appear and rescue the workers
and then, or rescue the respondent, and within a few months of
that, the respondents leave the country of India, usually with
the assistance of agents or someone to assist them in
smuggling.
The IJ also noted that the respondents allege their attackers beat them
with “sticks, wooden sticks and [field] hockey sticks.” The IJ then asked
Singh’s counsel if he wanted to address the similarities.
Singh’s counsel provided explanations during the hearing for many of
these similarities. As field hockey is India’s national sport, counsel argued
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No. 19-60937
that field hockey sticks, like baseball bats in the United States, are prevalent
and “the instrument of choice to inflict pain.” Counsel also contended that
Punjabis, like Singh’s family, are predominantly farmers, so the frequent
references to farmers merely reflected Punjab’s agricultural economy. He
also pointed to reports of rampant corruption in India’s police forces. The IJ
found “Respondent’s counsel[’s] explanation [for the similarities]
insufficient to rebut the repetitive narrative of applicants from India,” but
she did not further elaborate. Based on Singh’s similar asylum claim and two
inconsistencies between Singh’s testimony and the evidence in the record,
the IJ made an adverse credibility finding, which the BIA affirmed based on
the IJ’s stated reasons. Singh filed a petition for review and a motion for a
stay of removal, which we granted pending further order.
II
We consider four factors in determining whether to grant a stay:
“(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest
lies.”1 The first two factors are the “most critical.”2
A
Singh raises two principal arguments in his petition for review. First,
he contends that the IJ’s near total denial rate for asylum applications
reflected a bias and violated Singh’s due process rights. Second, he
challenges the BIA’s conclusion that the IJ adhered to the procedural
1
Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation
omitted).
2
Id.4
No. 19-60937
safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies
on inter-proceeding similarities for an adverse credibility determination. We
conclude that Singh has made the requisite showing that he is likely to
succeed on the merits of both claims.
“It is well established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.”3 “[T]he IJ must conduct
deportation hearings in accord with due process standards of fundamental
fairness.”4 Due process requires that an individual “be provided notice of the
charges against him, a hearing before an executive or administrative tribunal,
and a fair opportunity to be heard.”5 To succeed on a due process claim, a
petitioner “must make an initial showing of substantial prejudice,” which
requires demonstrating “that the alleged violation affected the outcome of
the proceedings.”6
The IJ here denied relief to asylum seekers in 203 of the 204 cases she
presided over from 2014 to 2019, a denial rate of 99.5%. There can be no
“right” denial rate. Denial rates vary: from 2014 to 2019, the nationwide
3
Reno v. Flores, 507 U.S. 292, 306 (1993); see also Okpala v. Whitaker, 908 F.3d 965,
971 (5th Cir. 2018). Procedural due process applies also to asylum hearings. See, e.g.,
Alvarado-Molina v. INS, No. 00-60579, 2002 WL 432384, at *4 (5th Cir. Feb. 25, 2002)
(unpublished) (per curiam) (considering claim that BIA violated due process in denying
asylum claim); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1039 (5th Cir. Unit B 1982)
(finding that the right to petition for asylum “is sufficient to invoke the guarantee of due
process”); see also, e.g., Canales-Rivera v. Barr, 948 F.3d 649, 656 (4th Cir. 2020) (“To be
sure, deportation and asylum hearings are subject to the requirements of procedural due
process.”).
4
Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993).
5
Okpala, 908 F.3d at 971.
6
Id. (citing Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)).
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No. 19-60937
denial rate ranged from 25% to 50%.7 Still, a consistent and near total denial
rate can engender the appearance of bias. We find it likely that a “reasonable
man, were he to know all the circumstances, would harbor doubts about the
judge’s impartiality.”8
Singh argues that several instances of the IJ’s conduct and her failure
to apply the procedural safeguards adopted by the BIA in Matter of R-K-K-
are evidence of substantial prejudice. Though we disagree that some of the
IJ’s conduct is sufficient to show prejudice, we find that Singh has made the
requisite showing that the IJ’s bias affected the outcome of his asylum
proceedings based on her noncompliance with Matter of R-K-K-.
Singh first points to the IJ smirking and rolling her eyes, referencing
Singh’s testimony of attacks against his father as “self-serving,” and
seemingly disregarding some of the evidence Singh put forward. “[J]udicial
remarks . . . that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases ordinarily do not support a bias or partiality
challenge.”9 They only do so “if they reveal an opinion that derives from an
extrajudicial source” or “if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.”10 None of the IJ’s
statements or conduct referenced by Singh reveal either an opinion from an
extrajudicial source or a high degree of antagonism.
7
Exec. Off. for Imm. Rev., Dep’t of J., Adjudication
Statistics: Asylum Decision Rates, (July 14, 2020),
https://www.justice.gov/eoir/page/file/1104861/download.
8
United States v. Avilez-Reyes, 160 F.3d 258, 259 (5th Cir. 1998) (quoting Health
Servs. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986), aff’d 486 U.S. 847(1988)).
9
Liteky v. United States, 510 U.S. 540, 556 (1994).
10
Id.6
No. 19-60937
Singh next points to the IJ’s failure to comply with the procedural
safeguards required when an IJ relies on inter-proceeding similarities as
another way in which the IJ’s bias affected the outcome of his claim. “Inter-
proceeding similarities” can inform an adverse credibility determination but
must be reviewed “with an especially cautious eye.”11 In Matter of R-K-K-,
the BIA adopted a three-part framework for IJs to use when relying on inter-
proceeding similarities:
First, the Immigration Judge should give the applicant
meaningful notice of the similarities that are considered to be
significant. Second, the Immigration Judge should give the
applicant a reasonable opportunity to explain the similarities.
Finally, the Immigration Judge should consider the totality of
the circumstances in making a credibility determination. Each
of these steps must be done on the record in a manner that will
allow the Board and any reviewing court to ensure that the
procedures have been followed.12
The BIA explained that “[t]his framework will permit Immigration Judges to
draw reasonable inferences of falsity from inter-proceeding similarities while
establishing procedural safeguards to protect faultless applicants.”13
The IJ here did not comply with these procedures. At the first step,
the IJ must identify the similarities, notify the applicant, and provide the
applicant “with copies of the statements or documents in question and
explain how the similarities appear to undermine the applicant’s
credibility.”14 In Matter of R-K-K-, the IJ identified similarities between the
11
Matter of R-K-K-, 26 I&N Dec. 658, 661 (BIA 2015).
12
Id. (quoting Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 520 (2d Cir.
2007)).
13
Id.14
Id. at 661.
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claims of the respondent and his brother, providing “identical wording,
typographical and spelling errors, and spacing irregularities in describing the
same events” and pointing out their use of plural pronouns even though only
the brother’s declaration referred to a second person.15 Here, the IJ did not
compare the petition to specific applications, instead orally describing an
amalgam of applications that she had previously seen.16 Nor did the IJ identify
“a substantial number of instances where the same or remarkably similar
language is used to describe the same kind of incident or encounter.”17 As a
result, Singh could not meaningfully compare the language and narratives,
produce evidence to explain the similarities, or draw attention to important
distinctions. A composite description provides only a distillation of several
petitions and a glimpse into the mind of the IJ, an insufficient foundation for
the fine-grained comparisons that are needed for inter-proceeding
similarities to have probative value.18 For the same reasons, it precludes the
15
Id. at 664-65.
16
The Government argues that Matter of R-K-K- allows an IJ to consider
similarities between “documents or other evidence” and so the IJ’s identification of
evidentiary similarities on the record suffices. Matter of R-K-K- does allow for an IJ to rely
on similarities between documents or “other evidence,” but an IJ is required to “notify the
applicant of the similarities that need to be explained. The [IJ] should provide the applicant
with copies of the statements or documents in question and explain how the similarities
appear to undermine the applicant’s credibility.” Matter of R-K-K-, 26 I&N Dec. at 661.
The requirement to provide copies of similarities from other proceedings is thus not limited
to documentary evidence. Where those similarities are based on similar language, the IJ
should provide copies of the documents containing similar language, and where the
similarities are based on evidentiary overlaps, the IJ should provide copies of the witness
statements or other records from other proceedings containing the similar evidence as far
as confidentiality allows. See id. at n.3. A general sketch of factual similarities on the record,
as the IJ did here, fails to provide the meaningful notice that Matter of R-K-K- requires.
17
Id. at 661.
18
See Wang v. Lynch, 824 F.3d 587, 592 (6th Cir. 2016) (“There is an important
distinction, however, between applications that are very similar and applications that are
identical in many respects.”); see also Mei Chai Ye, 489 F.3d at 527 (holding reviewing court
8
No. 19-60937
BIA and appellate courts from engaging in the searching review that inter-
proceeding similarities require.
Moreover, the IJ’s decision describes several purported similarities
that she did not raise at all during Singh’s asylum hearing. These similarities
include that the applicants in similar cases were attacked after hanging
posters, that their injuries were largely bruises and swelling, that the
applicants hid at relatives’ homes, and that the applicants all arrived in
Mexico and then crossed into the United States. Singh’s counsel received no
notice of these similarities prior to the IJ’s decision.
Next, the IJ must provide the applicant with a sufficient opportunity
to explain the similarities. Unless an applicant is already prepared to “offer a
reasonable explanation or credible evidence to dispel doubts about the
authenticity or reliability of the initial evidence,” the IJ may continue the
hearing to allow applicants to review the materials and gather evidence in
support of their explanation. Practically, this often will require continuances
to allow counsel to prepare. The respondent in Matter of R-K-K- had three
months to prepare;19 here, counsel had a few seconds. The IJ presented
Singh’s counsel with a sketch of the allegedly similar applications and asked
counsel to respond. Counsel provided responses but was not given any
opportunity to gather evidence to further respond to the IJ’s concerns.20 And
can refer to IJ’s determination that “striking inter-proceeding similarities are . . . evidence
of a ‘canned’ story” when IJ scrupulously abides by procedural safeguards).
19
Matter of R-K-K-, 26 I&N Dec. at 664.
20
By counsel’s own admission, he was unfamiliar with Matter of R-K-K- and its
safeguards and did not request a continuance. The due process concerns that undergird
these procedural safeguards compel the IJ to comply with them regardless of whether the
applicant invokes them. See id. at 661.
9
No. 19-60937
counsel was given no opportunity to respond to the similarities the IJ first
highlighted in her decision.
Finally, the IJ must consider the totality of the evidence. In addition
to the inter-proceeding similarities, the IJ cited two inconsistencies between
Singh’s testimony and evidence in the record. First, the IJ referenced a
dispute over the dates of medical certificates. Singh testified that he received
medical documents after receiving treatment in India after both attacks, but
the medical certificates provided in the record are dated December 15, 2018,
when Singh was in the United States.21 Singh argues that he was referring to
two separate sets of medical documents—one set provided to him in India
and another issued after he arrived in the United States.22 Second, the IJ
noted a factual discrepancy between Singh’s testimony and a witness’s letter.
Singh testified that after one of the attacks, he was taken to the hospital by
his father and a local farmer. The farmer submitted a letter in which he said
Singh’s father took him to the hospital, without mentioning whether the
farmer accompanied them. While minor inconsistencies may be sufficient for
an adverse credibility determination, the IJ’s credibility finding must be
supported by “specific and cogent reasons derived from the record” and
based on the totality of the circumstances.23 Given the accounts of multiple
21
Though the medical certificates were issued on December 15, 2018, they
reference the specific dates of treatment consistent with Singh’s testimony about when he
was attacked.
22
The exchange between the IJ and Singh about the medical certificate dates was
less than clear. However, when later asked to clarify, Singh specified that the medical
records he testified to receiving in India were the prescriptions he was given when
discharged and that the records the IJ was referring to were provided to his father after
Singh left for the United States. Thus, Singh’s testimony is clear that he was referring to
two separate sets of medical records.
23
Wang, 569 F.3d at 537 (internal quotation marks and citation omitted); see id. at
538 (“[A]n IJ may rely on any inconsistency or omission in making an adverse credibility
10
No. 19-60937
witnesses to the attacks on Singh, medical records, images of the attacks on
his father, and witness testimony regarding the BJP’s continued pursuit of
Singh, Singh has made the requisite showing that the totality of the evidence
does not support the IJ’s credibility determination.
The appearance of bias painted by the denial of 203 of 204 asylum
applications and the IJ’s adverse-credibility determination, informed by her
noncompliance with the procedural safeguards of Matter of R-K-K-, are here
interlaced. We do not suggest that a high percentage of denials is sufficient
to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns
in applicants’ presentations are likely and may necessarily result in a higher
denial rate if the shared basis for relief is inadequate. But here, the incredibly
high denial rate, when coupled with the IJ’s noncompliance with Matter of
R-K-K-, presents a substantial likelihood that Singh will be entitled to relief
upon full consideration by a merits panel.
B
“[T]he burden of removal alone cannot constitute the requisite
irreparable injury.”24 But, here, Singh also urges that upon removal, his life
will be in jeopardy from the BJP party. Considering the evidence of multiple
attacks by BJP members on Singh and on his parents in their search of him,
we conclude that Singh has demonstrated sufficient probability of irreparable
injury.25
determination as long as the totality of the circumstances establishes that an asylum
applicant is not credible . . . .” (internal quotation marks and citation omitted)).
24
Nken, 556 U.S. at 435.
25
See id. at 434 (noting that an applicant for a stay must demonstrate more than
“some possibility of irreparable injury” (internal citation and quotation marks omitted));
see also Leiva-Perez v. Holder, 640 F.3d 962, 969 (9th Cir. 2011) (“Consideration of the
11
No. 19-60937
C
The third and fourth factors merge when the Government is the party
opposing a stay.26 There are competing public interests here: the “public
interest in preventing aliens from being wrongfully removed, particularly to
countries where they are likely to face substantial harm,” and the “public
interest in prompt execution of removal orders.”27 There is no indication that
the interest in prompt removal is “heightened” here—the record does not
establish that Singh is “particularly dangerous” or that he “has substantially
prolonged his stay by abusing the processes provided to him.”28 We conclude
that the public interest here weighs in favor of a stay of removal.
Accordingly, we GRANT Singh’s motion for a stay pending review
of his petition.
likelihood of [physical danger if returned to his or her home country] . . . should be part of
the irreparable harm inquiry.” (citation omitted)).
26
Nken, 556 U.S. at 435.
27
Id. at 436.
28
Id.12