Singh v. Holder

FILED
NOT FOR PUBLICATION SEP 15 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SATNAM SINGH, No. 06-72050

Petitioner, Agency No. 75-309-978

v.

ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM*
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted July 14, 2010
San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and HOGAN, District Judge.**

Petitioner Satnam Singh, a native and citizen of India seeks review of a

Board of Immigration Appeals (“BIA”) decision dismissing his appeal of the

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.
Immigration Judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.

As the facts and procedural history are familiar to the parties, we recite them here

only as necessary to explain our decision.

We reject Singh’s contention that the IJ violated his due process rights by

admitting the asylum officer’s notes in the officer’s absence. On appeal, Singh

argues that “[i]t was fundamentally unfair for the IJ to admit these confusing and

ultimately dispositive documents despite Petitioner’s lack of opportunity to cross-

examine the officer who prepared them.” We disagree. In an immigration

proceeding, “[t]he sole test for admission of evidence is whether the evidence is

probative and its admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308,

310 (9th Cir. 1995). The IJ’s use of the notes for impeachment purposes did not

prevent Singh from reasonably presenting his case, as Singh had an opportunity to

explain inconsistencies between his testimony and the notes. Further, we conclude

that even if cross-examination of the officer might have reduced the probative value

of the notes, Singh was not prejudiced, as the IJ’s adverse credibility finding is

supported on other grounds. See id. at 310-11. Moreover, Singh provides no

reason to doubt that the IJ took the officer’s unavailability into consideration.

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 Substantial evidence supports the IJ’s adverse credibility determination.

Singh’s testimony about the circumstances surrounding his arrests in 1989, 1990,

and 1996, the arrests of his son, and the level of his political involvement lacked

consistency and specificity. See Singh-Kaur v. INS, 183 F.3d 1147, 1152-53 (9th

Cir. 1999); see also Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003) (“So long as

one of the identified grounds is supported by substantial evidence and goes to the

heart of [the petitioner’s] claim of persecution, we are bound to accept the IJ's

adverse credibility finding.”). Notably, even if we set aside the asylum officer’s

notes and Singh’s prior interview testimony, the IJ identified a significant

inconsistency between Singh’s declaration and his testimony regarding whether his

son was arrested in 1990.1 The record shows that Singh had ample opportunity to

explain the apparent discrepancies, and we find no error in the IJ’s consideration of

them nor in the IJ’s conclusion that Singh’s explanations were “implausible.”

1
Singh attacks findings of inconsistency between his sworn declaration and
his subsequent testimony, contending that “it was unreasonable for the IJ to fault
Petitioner for the hyperbole contained in his written declaration, which was
prepared by an immigration consultant.” We disagree. The IJ invited Singh to
make changes to his application or declaration before certifying its veracity. Singh
reviewed it with counsel and made only one change, adding one item to his
statement, and signed it.

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 Singh also argues the IJ erred by improperly considering the absence of

corroborative evidence in support of his requests for relief. Because the IJ had valid

reasons for questioning Singh’s credibility, the IJ could properly consider Singh’s

failure to produce corroborating evidence. See Unuakhaulu v. Gonzales, 416 F.3d

931, 938 (9th Cir. 2005). The IJ properly noted that Singh offered no corroborating

evidence, such that the credibility of Singh’s testimony “is extremely important in

this case.” Singh fails to show any indication that the IJ improperly considered the

availability of corroborating evidence. Cf. Malhi v. INS, 336 F.3d 989, 993 (9th Cir.

2003); Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001).

In the absence of credible testimony, Singh failed to demonstrate eligibility

for asylum. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because

Singh failed to meet the lower burden of proof for asylum, he necessarily failed to

establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d

1182, 1190 (9th Cir. 2006).

Finally, Singh failed to establish that it is more likely than not that he would

be tortured if removed to India, as his testimony lacks credibility and the record

lacks sufficient evidence of a likelihood of torture. Therefore, substantial evidence

supports the BIA’s denial of CAT relief. See Wakkary v. Holder, 558 F.3d 1049,

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1067-68 (9th Cir. 2009); Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001).

PETITION DENIED.

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