Singh v. Holder , 450 F. App'x 664 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANT BALBIR SINGH, No. 07-73963
Petitioner, Agency No. A079-260-828
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 30, 2011
San Francisco, California
Before: WALLACE, BERZON, and BYBEE, Circuit Judges.
Sant Balbir Singh (“Singh”) petitions for review of a decision of the Board
of Immigration Appeals (“BIA”) adopting and affirming the decision of the
immigration judge (“IJ”) denying Singh’s applications for asylum, withholding of
removal, relief under the Convention Against Torture, and voluntary departure. We
dismiss the petition in part and deny the petition in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Singh argues that the BIA and the IJ: (1) erred in determining that his
application for asylum was untimely; (2) violated his right to due process by failing
to consider his claim that changed circumstances excused his untimely application;
and (3) erred in finding that his testimony was not credible. The BIA’s decision is
reviewed for “substantial evidence.” Kamalyan v. Holder, 620 F.3d 1054, 1057
(9th Cir. 2010). Where, as here, the BIA adopts the IJ’s decision and also adds its
own reasons, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215
(9th Cir. 2005).
1. We lack jurisdiction to review the denial of asylum as untimely. An
applicant cannot receive asylum “unless the alien demonstrates by clear and
convincing evidence” that the applicant filed for asylum within one year of the date
of the applicant’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Our
review is barred by § 1158(a)(3), which states that “[n]o court shall have
jurisdiction to review any determination” made as to timeliness.
Singh relies on Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)
(per curiam), in arguing that we have jurisdiction to review the timeliness issues
presented by his petition. See 8 U.S.C. § 1158(a)(2)(D). Singh misreads Ramadan,
which simply held that the REAL ID Act permits appellate judicial review over
petitions involving mixed questions of law and fact. 479 F.3d at 654. The
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timeliness of Singh’s application presents questions of disputed historical fact
which were resolved against him. We lack jurisdiction over his claim for asylum.
2. As to whether Singh was deprived of due process, he failed to raise
his “changed circumstances” argument before the Board. The Board could not
consider his argument, and therefore Singh has forfeited it on appeal. See
Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir. 2001) (per curiam).
3. Finally, the IJ did not err in making an adverse credibility
determination with respect to Singh’s claims for withholding and CAT relief by
relying on Singh’s dishonesty concerning the manner of his entry into the United
States. The clear evidence of Singh’s misrepresentations to the IJ, together with the
IJ’s observations that Singh’s testimony was vague as to the severity of the
beatings, that he suffered no external visible injuries, and that he did not require
medical treatment beyond oil for a massage and some pills, was a sufficient basis
for denying Singh’s request for withholding of removal and CAT relief. See Kaur
v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005) (adverse credibility
determinations may be supported by substantial evidence “when inconsistencies
that weaken a claim for asylum are accompanied by other indications of
dishonesty”).
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“An asylum applicant who lies to immigration authorities casts doubt on his
credibility and the rest of his story.” Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir.
2011).1 Singh’s explanation that the preparers of his asylum application instructed
him to lie does not change the analysis. While mistakes or inconsistencies
attributable to “unscrupulous preparer[s]” cannot be used as a basis for an adverse
credibility determination, Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.
2003), instances of knowing and deliberate dishonesty – even if the original
inspiration for the lie did not come from the petitioner – can.
PETITION DISMISSED in part; DENIED in part.
1
The Singh precedent cited in the text, like the present case, concerned
asylum applications filed before the passage of the REAL ID Act. See Singh, 643
F.3d at 1179 (noting that the petitioner filed for asylum soon after he came to the
United States in 1994, well before the passage of the REAL ID Act in 2005).
While the present case is subject to our pre-REAL ID Act precedent which adopted
a “heart of the claim” rule, see Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660
(9th Cir. 2003), Singh makes it very clear that such a rule does not apply to
instances of deliberate dishonesty.
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