12-376
Singh v. Holder
BIA
Cheng, IJ
A087 164 703
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 KAMALDEEP SINGH,
14 Petitioner,
15
16 v. 12-376
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Edward J. Duffy,
28 Senior Litigation Counsel; John M.
29 McAdams, Jr., Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Kamaldeep Singh, a native and citizen of India, seeks
10 review of a December 30, 2011, decision of the BIA affirming
11 the April 27, 2010, decision of Immigration Judge (“IJ”)
12 Mary Cheng, which pretermitted his asylum application as
13 untimely, and denied his applications for withholding of
14 removal and for relief under the Convention Against Torture
15 (“CAT”). In re Kamaldeep Singh, No. A087 164 703 (B.I.A.
16 Dec. 30, 2011), aff’g No. A087 164 703 (Immig. Ct. N.Y. City
17 April 27, 2010). We assume the parties’ familiarity with
18 the underlying facts and procedural history in this case.
19 I. Asylum - Pretermission
20 Singh challenges the agency’s pretermission of his
21 asylum application as untimely, asserting that he was
22 excepted from the one year limitation because he had been
23 pursuing an adjustment of status based on his marriage to a
24 U.S. citizen. Although we lack jurisdiction to review
25 pretermission, see 8 U.S.C. § 1158(a)(3), (a)(2)(B),
2
1 (a)(2)(D), we retain jurisdiction to review constitutional
2 claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D).
3 While Singh’s argument raises a question of law, Xiao Ji
4 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.
5 2006), it lacks merit. As the IJ found, the denial of
6 adjustment of status does not constitute a changed
7 circumstance because it does not affect an individual’s
8 eligibility for asylum, which turns solely on the alien’s
9 fear of persecution. See 8 U.S.C. § 1158(b)(1)(A),
10 (a)(2)(D) (requiring that a changed circumstance be
11 material to the claim for asylum).
12 II. Withholding of Removal
13 Under the circumstances of this case, we have reviewed
14 the IJ’s decision as modified by the BIA. Yun-Zui Guan v.
15 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). For
16 applications such as Singh’s, governed by the amendments
17 made to the Immigration and Nationality Act by the REAL ID
18 Act of 2005, the agency may, considering the totality of the
19 circumstances, base a credibility finding on the applicant’s
20 “demeanor, candor, or responsiveness,” the plausibility of
21 his account, and inconsistencies in his statements, without
22 regard to whether they go “to the heart of the applicant’s
3
1 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
2 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
3 We will “defer to an IJ’s credibility determination unless,
4 from the totality of the circumstances, it is plain that no
5 reasonable fact-finder could make” such a ruling. Xiu Xia
6 Lin, 534 F.3d at 167. In this case, the IJ’s adverse
7 credibility determination is supported by substantial
8 evidence.
9 The IJ reasonably based her credibility finding on
10 Singh’s inconsistent testimony, omissions in his testimony,
11 his non-responsiveness, and his lack of documentary
12 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
13 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167; Biao Yang v.
14 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
15 First, the IJ relied on inconsistencies and omissions
16 in Singh’s testimony, including the following: (1) Singh’s
17 testimony that he had not suffered internal injuries, though
18 his asylum application specifically mentioned both internal
19 and external injuries; (2) his failure to mention a 2005
20 arrest and detention for political activities in his
21 application; and (3) the omission of the 2005 arrest from
22 his uncle’s letter. The IJ reasonably relied on these
4
1 inconsistencies and omissions in making her adverse
2 credibility determination. See 8 U.S.C.
3 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
4 at 167 (providing that an IJ may support an adverse
5 credibility determination with “any inconsistency or
6 omission”).
7 Moreover, the IJ was not required to credit Singh’s
8 explanations for these inconsistencies and omissions. See
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
10 Although Singh stated that he meant to testify that he did
11 not suffer internal fractures, and that he thought his 2005
12 arrest was too minor to mention in his application, he also
13 stated that his memory, and his uncle’s, had faded over
14 time. Because these explanations were unpersuasive and did
15 not resolve the inconsistencies, the agency was not required
16 to credit them. See id. (providing that the agency need not
17 credit an applicant’s explanations for inconsistent
18 testimony unless those explanations would compel a
19 reasonable fact-finder to do so).
20 The adverse credibility determination is further
21 supported by Singh’s non-responsiveness. For example, when
22 Singh was asked how he practiced his Sikh faith in India, he
23 responded by talking about how Sikhs are attacked in India.
5
1 Similarly, when asked how he practices his faith in the
2 United States, he responded only that Sikhs are free in this
3 country. He did not mention that he attends a “gurdwara”
4 until asked directly. Because the IJ’s demeanor finding was
5 tied to these instances of non-responsiveness and the above-
6 mentioned inconsistencies, we defer to that finding. See Li
7 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
8 2006).
9 Given the discrepancies and Singh’s lack of
10 responsiveness, the IJ did not err in requiring additional
11 corroboration. See Biao Yang, 496 F.3d at 273. The letter
12 from Singh’s uncle did not mention the 2005 arrest, even
13 though Singh testified that his uncle had paid a large bribe
14 to secure his release, nor did Singh offer any evidence that
15 he is a Sikh, or has been involved with the United Sikh
16 movement, or medical evidence of his injuries. Because, as
17 the BIA noted, much of this evidence was reasonably
18 available, as Singh claims to attend gurdwara with other
19 Sikhs, and he could have obtained a medical report from a
20 doctor in the United States, the lack of corroboration
21 provides further support for the adverse credibility
22 determination. See Chuilu Liu v. Holder, 575 F.3d 193, 198
23 (2d Cir. 2009); Biao Yang, 496 F.3d at 273. Because the
6
1 only evidence of a threat to Singh’s life or freedom
2 depended upon his credibility, the adverse credibility
3 determination in this case necessarily precludes a grant of
4 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
5 156 (2d Cir. 2006).
6 III. CAT
7 Finally, Singh argues that the IJ failed to do a
8 complete CAT analysis. However, as the BIA found, Singh
9 failed to meaningfully challenge the denial of CAT relief
10 before the BIA. Because the claim is not exhausted, we lack
11 jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); see
12 also Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DISMISSED in part and DENIED in part. As we have completed
15 our review,the pending motion for a stay of removal in this
16 petition is DISMISSED as moot.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
7