13-3077
Mullar v. Lynch
BIA
Vomacka, IJ
A087 445 586
A087 445 587
A087 445 588
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 2nd day of July, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 SATPAL SINGH MULLAR, JASPAL KAUR
14 MULLAR, SUKHKIRANDEEP SINGH MULLAR,
15 Petitioners,
16
17 v. 13-3077
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Genet Getachew, Brooklyn, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony W. Norwood, Senior
28 Litigation Counsel; Colin J. Tucker,
29 Trial 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 DENIED.
9 Petitioners, natives and citizens of India, seek review
10 of a July 25, 2013, order of the BIA, affirming the
11 September 26, 2011, decision of an Immigration Judge (“IJ”),
12 denying asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Satpal Singh
14 Mullar, Jaspal Kaur Mullar, Sukhkirandeep Singh Mullar, Nos.
15 A087 445 586/587/588 (B.I.A. July 25, 2013), aff’g Nos. A087
16 445 586/587/588 (Immig. Ct. N.Y.C. Sept. 26, 2011). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as modified by the BIA, i.e., minus the bases
21 for the credibility determination that the BIA expressly
22 declined to consider. See Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
24 standards of review are well established. See 8 U.S.C. §
25 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
2
1 162, 165-66 (2d Cir. 2008) (per curiam). For applications
2 such as Petitioners’, which are governed by the REAL ID Act,
3 the agency may base a credibility finding on an applicant’s
4 demeanor, the plausibility of his account, and
5 inconsistencies in his statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C. §
7 1158(b)(1)(B)(iii); In re J-Y-C-, 24 I. & N. Dec. 260, 265
8 (B.I.A. 2007). “We defer therefore to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia
12 Lin, 534 F.3d at 167.
13 The adverse credibility determination was properly
14 based on the inconsistency between Satpal’s application and
15 testimony about the name of the friend who harbored him from
16 police for several months. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii). In his application, Satpal stated
18 that this friend’s name was Ranjit Singh; however, he
19 testified three separate times that this friend’s name was
20 Amrik Singh. Petitioners contend that Satpal corrected
21 himself, after being confronted with this inconsistency, and
22 explained that his mistake was a result of nervousness. The
3
1 agency was not compelled to credit this explanation. See
2 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
3 The adverse credibility determination was also properly
4 based on the inconsistency between Satpal’s application and
5 testimony, as well as upon Satpal’s internally inconsistent
6 testimony, about whether police beat him along with his
7 father-in-law at a 2003 political rally. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). Satpal stated in his application that
9 he and his father-in-law were badly beaten; however, he
10 twice testified that he was not beaten before changing his
11 testimony to conform to his application. The agency did not
12 err in rejecting Satpal’s explanation that he was nervous.
13 See Majidi, 430 F.3d at 80-81.
14 The agency also properly relied on Satpal’s
15 non-responsive and evasive demeanor in finding him not
16 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Tu Lin v.
17 Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness
18 is, of course, one of the many outward signs a fact-finder
19 may consider in evaluating demeanor and in making an
20 assessment of credibility.”). The IJ reasonably noted that,
21 inter alia, Satpal was evasive when asked to whom he
22 reported in his political party and that at least three
4
1 questions were posed before Satpal provided a responsive
2 answer. Petitioners contend that Satpal appeared
3 non-responsive because he was struggling to understand the
4 questions. However, Satpal explicitly confirmed during the
5 hearing that he had no problems understanding the
6 proceedings. In this case, we afford the IJ’s assessment of
7 Satpal’s demeanor “great deference.” Tu Lin, 446 F.3d at
8 400-01; see also Li Hua Lin v. U.S. Dep’t of Justice, 453
9 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident
10 in our review of observations about an applicant’s demeanor
11 where, as here, they are supported by specific examples of
12 inconsistent testimony.”).
13 Petitioners do not challenge the agency’s findings that
14 their corroborating evidence was entitled to diminished
15 weight and that they failed to rehabilitate Satpal’s
16 credibility with reasonably available corroborating
17 evidence. Therefore, those findings stand as valid bases
18 for the agency’s adverse credibility determination. See
19 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
20 curiam) (recognizing that an applicant’s failure to
21 corroborate his testimony may bear on credibility, or
22 because the absence of corroboration makes an applicant
23
5
1 unable to rehabilitate testimony that has already been
2 called into question).
3 Based on the foregoing, we find that the agency’s
4 adverse credibility determination is supported by
5 substantial evidence. See Xiu Xia Lin, 534 F.3d at 167.
6 The agency therefore did not err in denying asylum,
7 withholding of removal, and CAT relief because all three
8 claims shared the same factual predicate. See Paul v.
9 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
6