Hardiyal Singh v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARDIYAL SINGH, AKA Singh Gurdayal, No. 16-70531
Petitioner, Agency No. A094-395-356
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Hardiyal Singh, a native and citizen of India, petitions for review from an
order of the Board of Immigration Appeals (BIA) upholding the denial of his
claims for asylum, withholding of removal, and protection under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Against Torture (CAT).1 We have jurisdiction pursuant to 8 U.S.C. § 1252, and
we deny the petition.
Substantial evidence supports the Immigration Judge’s (IJ) adverse
credibility determination. The IJ and the BIA (collectively, the agency)
highlighted a conflict between Singh’s sworn statements to the Asylum Officer
during his credible fear interview and Singh’s subsequent claims in his asylum
application and to the IJ regarding why he was allegedly targeted by the Punjabi
police.2 In his credible fear interview, Singh asserted that he had been targeted,
harassed, and beaten by police due to his association with a suspected local
terrorist named Harbesh Singh (Harbesh). Singh alluded to his membership in the
SADA political party, but he downplayed his political involvement and never
suggested his political affiliation was the reason police harassed him.3
By contrast, in his asylum application and during his direct testimony before
1
Singh testified that his name is Guardayal Singh, and other spelling
variations appear in the record.
2
We do not address Singh’s argument that not affording him the opportunity
to cross-examine the Asylum Officer at the merits hearing amounted to a denial of
due process. Singh failed to raise this argument before the BIA, so we lack
jurisdiction to consider it. See Sola v. Holder, 720 F.3d 1134, 1135-36 (9th Cir.
2013) (holding that the circuit has no jurisdiction to review an unexhausted due
process claim where the agency could have addressed it).
3
“SADA” refers to the Shiromani Akali Dal Amritsar Party, also known as
the Mann Party. In his credible fear interview, Singh also claimed that, before
joining SADA, he was “with the Akali Party.”
2
the IJ, Singh made no mention of Harbesh and, instead, focused solely on his
membership in the SADA party as the basis for the police harassment he alleged.
When confronted with this discrepancy, Singh did not provide a compelling
explanation. Because this inconsistency lies “at the heart of the claim” for asylum,
the agency was entitled to assign it “great weight” when assessing credibility.
Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010).
The agency’s adverse credibility determination renders Singh ineligible for
asylum because the remaining evidence in the record is insufficient to support
Singh’s claim. Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017). We
agree with the agency that the documentary evidence Singh submitted failed to
demonstrate, independent of his discredited testimony, that Singh had suffered past
persecution.
Because Singh cannot establish eligibility for asylum, he necessarily fails to
carry the greater burden of establishing eligibility for withholding of removal.4 Id.And because Singh’s CAT claim is “based on the same statements . . . that the BIA
determined to be not credible in the asylum context,” the agency’s conclusion that
Singh failed to show a probability of torture upon return to India is supported by
4
Because we uphold the agency’s denial of Singh’s asylum and withholding
of removal claims on adverse credibility grounds, we do not reach the agency’s
alternative conclusion that Singh was ineligible for relief due to his ability to
internally relocate in India. See Shrestha, 590 F.3d at 1048 n.6.
3
substantial evidence. Id. (alteration in original) (quotation marks omitted).
PETITION DENIED.
4