Sukhdeep Singh v. Monty Wilkinson ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 21, 2021*
Decided January 22, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 20-1638
SUKHDEEP SINGH, On Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A208-177-595
MONTY WILKINSON,
Acting Attorney General of the United States.
Respondent.
ORDER
Sukhdeep Singh, an Indian citizen belonging to a Sikh-dominated political party,
petitions for review of an order of the Board of Immigration Appeals upholding the
denial of his applications for asylum, withholding of removal, and relief under the
Convention Against Torture. Because substantial evidence supports the Board’s
determination, we deny his petition.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C). We have substituted Monty
Wilkinson, the acting Attorney General, for the respondent. FED. R. APP. P. 43(c).
No. 20-1638 Page 2
Singh’s claim for asylum and associated relief arises from his adherence to
Shiromani Akali Dal Amritsar, also known as the Mann Party, a Sikh-dominated
political party and separatist group. Singh, who is from Punjab in northern India, began
working for the Mann Party in December 2013. He supported the party’s efforts to help
the underprivileged in Punjab and to create an independent state for Sikhs.
In mid-2014, members of another Sikh-dominated political party, the Badal
Party, began targeting Singh for his involvement in the Mann Party, which they
believed was splitting the Sikh vote and threatening the Badal Party’s power. As Singh
testified, he started receiving phone calls from persons who threatened violence if he
did not disassociate from the Mann Party. In November 2014, members of the Badal
Party attacked Singh and beat him unconscious. When he tried to report the incident,
the police refused to listen to him. In February 2015, he was assaulted by the same
attackers but managed to escape. A few weeks later he fled India, and in May he was
smuggled into the United States.
The Department of Homeland Security promptly initiated removal proceedings,
charging Singh with entering the United States without a valid entry document.
See 8 U.S.C. § 1182(a)(7)(A)(i)(I). He conceded that he was removable as charged. In
2016, he applied for asylum, 8 U.S.C. § 1158, withholding of removal, 8 U.S.C.
§ 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. § 1208.16(c),
based on the harm he suffered due to his political opinion and association with the
Mann Party. In early 2018, the immigration court in San Francisco scheduled a merits
hearing for three years out, in January 2021.
In the meantime, Singh married a U.S. citizen, moved from California to Indiana,
and hired new counsel. In April 2018, he sought a change of venue to the immigration
court in Chicago. On May 2, the San Francisco immigration court granted his request.
In Chicago, the pace of the proceedings quickly picked up. On May 9, the
immigration court informed Singh that a hearing date in the matter had been set for
May 23. On May 10, Singh’s newly retained counsel moved for a continuance, asserting
that 14 days’ notice was insufficient time to prepare for the hearing, obtain supporting
evidence, and meet the immigration court’s expectation that supporting materials be
filed within 15 days of the hearing. See IMM. CT. PRACT. MAN. 3.1(b)(ii)(A) (2018) (“[F]or
No. 20-1638 Page 3
individual calendar hearings … , filings must be submitted at least fifteen (15) days in
advance of the hearing.”). On May 14, the court denied the continuance.
On May 23, the hearing proceeded as scheduled. Singh’s counsel renewed the
request for a continuance. Counsel submitted an affidavit from Singh’s proposed expert
witness, a scholar of South Asian religions familiar with the persecution of Sikhs, who
attested that she did not have sufficient notice to evaluate Singh’s circumstances in time
for the hearing. Counsel also attached the order from the San Francisco court showing
that the hearing had previously been set for January 2021.
An immigration judge determined that Singh had not demonstrated just cause
for a continuance and denied the request. Singh’s counsel, the IJ stated, had not
explained why Singh was unable in the three years since filing his application to gather
evidence or arrange for an expert, nor did he specify what testimony an expert would
offer or what additional evidence he sought to present. As for the short turnaround
between the notice of hearing and the hearing itself, Singh had not explained why two
weeks was insufficient time to have original documents sent to him by air mail.
The IJ then proceeded with the scheduled merits hearing and denied the
requested relief. She determined that Singh was not credible and lacked evidence to
corroborate his testimony. Singh struggled, she said, to explain the tenets of the Mann
Party, identify the people he worked with, and describe his journey to America, even
giving two different dates for his departure from India (February 24 and March 4). The
IJ also noted inconsistencies between Singh’s testimony and details in his father’s
affidavit (over the number of attackers, whether Singh went to a hospital after the
attack, whether he was rendered unconscious, whether the second attack involved a
sword, and whether Singh received a death threat in late February). Because she found
Singh not credible, the IJ explained that the REAL ID Act, see 8 U.S.C. § 1229a(c)(4)(B),
which governs this case, required him to corroborate the details of his account, and he
failed to do so. Singh provided no evidence, the IJ added, to corroborate that he sought
medical treatment, was mistreated on account of his political activity, or received
threatening phone calls.
Singh then sought review by the Board of Immigration Appeals, which upheld
the IJ’s rulings. The Board endorsed the adverse credibility determination, agreeing
with the IJ that Singh’s testimony contained material inconsistencies and omissions, and
No. 20-1638 Page 4
that his corroborative evidence did not sufficiently rehabilitate his discredited
testimony. As for the motion to continue, the Board agreed with the IJ that Singh had
not shown good cause for a continuance: Singh already had been in removal
proceedings for three years, he had retained new counsel three months before the
hearing, and he did not adequately explain why he did not earlier try to gather
evidence and present an expert witness.
Singh first challenges the adverse credibility determination on grounds that the IJ
and the Board relied on minor inconsistencies that were easily explained. For instance,
regarding the discrepancies between his testimony and his father’s, he argues that his
father was not present at the attacks and that his own recollections were clouded by his
injuries that night. Singh also argues that too much was made of his lack of familiarity
with the ins and outs of the Mann Party, given his low-level status with the group.
20-1638
Singh faces a high evidentiary burden, however, in challenging the adverse
credibility finding. We will overturn a credibility determination only under
“extraordinary circumstances” in which the IJ and the Board did not support their
conclusions with specific evidence, and the facts compel the opposite conclusion.
See Santashbekov v. Lynch, 834 F.3d 836, 839 (7th Cir. 2016).
The IJ justified her adverse credibility finding by highlighting the inconsistent
nature of Singh’s testimony. Singh testified, for example, that he was attacked by five
individuals, rendered unconscious, and that he did not go to the hospital because it was
run by the Badel Party; but his father asserted in his affidavit that the number of
attackers was four, that Singh came home “upset” and with just a “bloody nose,” and
that they went to the hospital (though they were turned away). Because these
inconsistencies call into question details about an attack central to Singh’s claim, they
cannot be dismissed as trivial. See Alvarenga-Flores v. Sessions, 901 F.3d 922, 925–26
(7th Cir. 2018). The IJ also pointed out that Singh testified about unusual details (i.e., the
sword and the death threat) that were not mentioned anywhere in his application or
supporting materials. See Santashbekov, 834 F.3d at 841. And the IJ appropriately
highlighted the discrepancy over the date when Singh left India. See Krishnapillai v.
Holder, 563 F.3d 606, 618 (7th Cir. 2009). Based on these inconsistencies, we cannot
conclude that any reasonable factfinder would be compelled to disagree with the IJ’s
determination. See 8 U.S.C. § 1252(b)(4)(B); Santashbekov, 834 F.3d at 839.
No. 20-1638 Page 5
Singh also argues that the IJ deprived him of a full and fair hearing by denying
him a continuance to allow his new lawyer more time to prepare his case. Because the
immigration court in San Francisco had postponed his merits hearing until January
2021, Singh maintains that the Chicago immigration court’s decision to hold his hearing
abruptly in May 2018—with only 14 days’ notice—prejudiced him by limiting his time
to obtain corroborating evidence.
We review the denial of a continuance for abuse of discretion and will uphold
the decision so long as it was based on a rational explanation. See Toure v. Barr, 926 F.3d
403, 407 (7th Cir. 2019). As the Board reasonably explained, Singh had three years while
removal proceedings were pending to gather whatever evidence he needed to present
his case. True, Singh had only two weeks’ notice of his hearing in Chicago, but he
sought the change in venue, and he should have known that the Chicago court would
not be bound by the San Francisco court’s timeline. As the Board also explained, Singh
did not identify the documents he hoped to procure or why they were important to his
application. Lastly, to the extent Singh suggests that the denial of a continuance violated
his right under 8 U.S.C. § 1229a(b)(4)(B) to present evidence on his own behalf, the
Board was right to conclude that Singh cannot show prejudice, in light of the adverse
credibility finding and his failure to specify what evidence he needed more time to
obtain. See Souley v. Holder, 779 F.3d 720, 724 (7th Cir. 2015).
DENIED