Harjinder Singh v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARJINDER SINGH; GURJIT KAUR, No. 18-71681
Petitioners, Agency Nos. A089-689-196
A089-689-197
v.
ROBERT M. WILKINSON, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 15, 2021
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,** District
Judge.
Harjinder Singh, a native and citizen of India, petitions for review of the order
by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision
by an Immigration Judge (IJ) denying his claims for asylum, withholding of removal,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
and protection under the Convention Against Torture (CAT).1 Because the parties
are familiar with the facts, we do not recount them here, except as necessary to
provide context to our ruling. We review the BIA’s legal conclusions de novo and
its factual findings for substantial evidence. Singh v. Whitaker, 914 F.3d 654, 658
(9th Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011)). We
also review adverse credibility determinations for substantial evidence. Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny Singh’s petition.
1. Substantial evidence supports the BIA’s adverse credibility determination
and denial of Singh’s asylum claim. Pursuant to the REAL ID Act, the IJ may, in
“[c]onsidering the totality of the circumstances, and all relevant factors . . . base a
credibility determination on the demeanor” of the applicant, “consistency between
the applicant’s or witness’s written and oral statements,” “the internal consistency
of each such statement,” and “any other relevant factor.” Shrestha, 590 F.3d at 1039–
40 (quoting 8 U.S.C. §§ 1158(b)(1)(B)(iii)). The BIA highlighted several reasons for
affirming the IJ’s decision: (1) inconsistencies between Singh’s and Kaur’s
testimonies; (2) “varying and implausible testimony” regarding an omission from
Singh’s asylum interview that his brother was arrested because of Singh; and
(3) Singh’s overall demeanor. The record reflects that there was considerable
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Harjinder Singh’s wife, Gurjit Kaur, is a derivative asylum applicant.
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confusion in Kaur’s testimony regarding who was at the home when police visited,
whether they visited, and what they did, and some of Kaur’s testimony was
inconsistent with Singh’s testimony. Additionally, the IJ’s demeanor finding
adequately referred to the non-credible aspects of Singh’s demeanor: “[H]e testified
confidently and clearly on direct examination but became nonresponsive, evasive,
and self-contradictory when questioned about inconsistencies.” See Manes v.
Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017) (“[A]n IJ can meet the IJ’s obligation
to provide specific examples of the petitioner’s demeanor by making explicit
reference to particular unrecorded aspects of demeanor” (internal quotation marks
omitted)). Singh’s documentary evidence did not rehabilitate his testimony or
independently establish his burden of proof. Therefore, we uphold the BIA’s adverse
credibility determination and the denial of asylum, and we need not reach the issue
of safe relocation in India.
2. Because Singh is not eligible for asylum, he does not satisfy the standard
for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.
2006).
3. Because we uphold the BIA’s adverse credibility determination, Singh’s
CAT claim must be evaluated solely on the background documents submitted,
Shrestha, 590 F.3d at 1048–49, and this evidence does not compel the conclusion
that Singh is more likely than not to be tortured in India on account of his political
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affiliation with the Mann party. The background documents fail to establish that
Singh faces a clear probability of torture if he returns to India because most of the
documents did not discuss the Mann party specifically, and they focused more
generally on anti-Sikh and Hindu nationalist sentiments. Substantial evidence
supports the BIA’s denial of CAT protection.
PETITION FOR REVIEW DENIED.
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