13-1783
Singh v. Holder
BIA
Vomacka, IJ
A087 899 527
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 22nd day of September, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 MANDEET SINGH, AKA SATISH MALHOTRA,
14 Petitioner,
15
16 v. 13-1783
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Genet Getachew, Brooklyn, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Sheri R. Glaser,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Mandeet Singh, a native and citizen of
6 India, seeks review of an April 8, 2013 order of the BIA,
7 affirming the August 17, 2012 decision of an Immigration
8 Judge (“IJ”), which denied a continuance, asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Mandeet Singh, No. A087 899
11 527 (B.I.A. Apr. 8, 2013), aff’g No. A087 899 527 (Immig.
12 Ct. New York City Aug. 17, 2012). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
18 The applicable standards of review are well established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
21 I. Credibility Determination
22 For applications such as Singh’s, which are governed by
23 the REAL ID Act, the agency may base a credibility finding
2
1 on an applicant’s demeanor, the plausibility of his account,
2 and inconsistencies in his statements, without regard to
3 whether they go “to the heart of the applicant’s claim.” 8
4 U.S.C. § 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s
5 credibility determination unless, from the totality of the
6 circumstances, it is plain that no reasonable fact-finder
7 could make such an adverse credibility ruling.” Xiu Xia
8 Lin, 534 F.3d at 167.
9 Initially, Singh has waived review of the agency’s
10 implausibility, demeanor, and corroboration findings by
11 failing to contest them in this Court. Yueqing Zhang v.
12 Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005) (“‘Issues not
13 sufficiently argued in the briefs are considered waived and
14 normally will not be addressed on appeal.’” (quoting Norton
15 v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)). For the
16 same reason, Singh has waived review of the agency’s finding
17 that he testified inconsistently about whether Akali Dal
18 Mann was legally recognized and took part in coalitions.
19 Id. Moreover, Singh failed to exhaust any challenge to the
20 specific “findings that informed the IJ’s adverse
21 credibility determination” before the BIA. Shunfu Li v.
22 Mukasey, 529 F.3d 141, 146 (2d Cir. 2008); Lin Zhong v. U.S.
3
1 Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007)
2 (observing that issue exhaustion is a mandatory, although
3 not jurisdictional, requirement).
4 Thus, the sole challenge preserved on appeal is to the
5 agency’s reliance on Singh’s credible fear interview. When
6 discrepancies arise from an applicant’s statements in a
7 credible fear interview, we will closely examine the
8 interview report to ensure that it represents a
9 “sufficiently accurate record” to merit consideration in
10 determining whether the applicant is credible. Ming Zhang
11 v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009). Singh’s
12 credible fear interview bore sufficient indicia of
13 reliability because: (1) it was memorialized in a
14 typewritten document setting forth the questions and
15 responses; (2) it was conducted with a Punjabi interpreter
16 and Singh does not contend that he did not understand any
17 questions; (3) the interviewing officer properly explained
18 the purpose of the interview; and (4) the questions were
19 clearly designed to elicit a potential basis for asylum,
20 such as why did you leave your country, why do you fear the
21 Congress party, and what do you think will happen if you
22 return to your country. See Ming Zhang, 585 F.3d at 723-25.
4
1 Based on the foregoing, we find that the agency’s
2 adverse credibility determination is supported by
3 substantial evidence because it cannot be said “that no
4 reasonable fact-finder could make such an adverse
5 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The
6 agency therefore did not err in denying asylum, withholding
7 of removal, and CAT relief because all three claims shared
8 the same factual predicate. See Paul v. Gonzales, 444 F.3d
9 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
10 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
11 II. Continuance Denial
12 We review the agency’s denial of a continuance for
13 abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193,
14 199 (2d Cir. 2006); Singh v. U.S. Dep’t of Homeland Sec.,
15 526 F.3d 72, 80-81 (2d Cir. 2008). The regulations provide
16 that an IJ “may grant a motion for continuance for good
17 cause shown;” however, the regulations do not define “good
18 cause.” See 8 C.F.R. § 1003.29. We have observed that
19 “[a]n IJ would . . . abuse his discretion in denying a
20 continuance if ‘(1) [his] decision rests on an error of law
21 (such as application of the wrong legal principle) or a
22 clearly erroneous factual finding or (2) [his]
23 decision—though not necessarily the product of a legal error
5
1 or a clearly erroneous factual finding—cannot be located
2 within the range of permissible decisions.’” Morgan v.
3 Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006) (quoting
4 Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.
5 2001) (alterations in Morgan)).
6 Here, the IJ denied Singh’s motion to continue his
7 merits hearing, which Singh sought in order to obtain
8 supporting letters and statements from India, because it was
9 filed after the deadline and Singh had over a year between
10 his master calendar and merits hearings to obtain supporting
11 evidence. Indeed, Singh filed his motion on July 17, 2012,
12 after the June 8, 2012 filing deadline, and Singh had more
13 than a year and eight months between his November 2010
14 master calender and August 2012 merits hearings to obtain
15 evidence. The IJ did not abuse his discretion in denying
16 the motion to continue. See Morgan, 445 F.3d at 551-52.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
23 Federal Rule of Appellate Procedure 34(a)(2), and Second
6
1 Circuit Local Rule 34.1(b).
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
4
5
7