14-3434 (L)
Singh v. Lynch
BIA
Nelson, IJ
A089 714 653
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of January, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 HARMESH SINGH,
14 Petitioner,
15
16 v. 14-3434(L),
17 15-507(Con)
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jaspreet Singh, Jackson Heights, New
25 York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; John S.
29 Hogan, Assistant Director; Lindsay
30 Corliss, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of these petitions for review of two
5 Board of Immigration Appeals (“BIA”) decisions, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petitions for review
7 are DENIED.
8 Petitioner Harmesh Singh, a native and citizen of India,
9 seeks review of an August 29, 2014, decision of the BIA affirming
10 a September 25, 2012, decision of an Immigration Judge (“IJ”)
11 denying Singh’s application for asylum, withholding of removal,
12 and relief under the Convention Against Torture (“CAT”). In
13 re Harmesh Singh, No. A089 714 653 (B.I.A. Aug. 29, 2014), aff’g
14 No. A089 714 653 (Immig. Ct. N.Y. City Sept. 25, 2012). He also
15 seeks review of the BIA’s January 23, 2015, denial of his motion
16 to reconsider or reopen. In re Harmesh Singh, No. A089 714 653
17 (B.I.A. Jan. 23, 2015). We assume the parties’ familiarity
18 with the underlying facts and procedural history in this case.
19 As to the denial of asylum and other relief, we have
20 reviewed the IJ’s decision, including the portions not
21 explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432
22 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
2
1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 For asylum applications, like Singh’s, governed by the REAL
4 ID Act, the agency may, “[c]onsidering the totality of the
5 circumstances,” base a credibility finding on inconsistencies
6 between the applicant’s statements and other evidence, “without
7 regard to whether” they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
9 534 F.3d 162, 163-64 (2d Cir. 2008). “We defer . . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder could
12 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
13 at 166.
14 Substantial evidence supports the adverse credibility
15 determination. The IJ reasonably relied on inconsistencies
16 between Singh’s testimony and his documentary evidence. The
17 letter Singh submitted, from a nursing home where he was treated
18 after his second alleged beating by police, stated that he was
19 comatose, but Singh did not mention any such severe injury.
20 This failure to discuss the serious nature of his injuries is
3
1 particularly damaging to his credibility. See Xian Tuan Ye v.
2 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).
3 Singh’s documentary evidence differed from his testimony
4 in other ways that further called into question whether he was
5 a political activist who had been targeted by the police and
6 the opposition party. His wife’s letter explained that she was
7 being harassed by police, but Singh testified that his wife and
8 children were safe in India. Further, his wife wrote that Singh
9 was arrested “so many times” in India, while Singh testified
10 that he was arrested only twice; the IJ found that “so many
11 times” meant more than twice, and a reasonable fact-finder would
12 not be compelled to accept Singh’s argument to the contrary.
13 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); Siewe
14 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).
15 The IJ also reasonably gave limited weight to Singh’s
16 additional documentary evidence, as the letters omitted
17 material information, were not properly authenticated, or were
18 prepared by parties unavailable for cross-examination. Xiao
19 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
20 2006); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
21 Accordingly, given that the inconsistencies call into question
4
1 the main allegations of past harm, substantial evidence
2 supports the agency’s adverse credibility determination, which
3 is dispositive of asylum, withholding of removal, and CAT
4 relief, because all three claims relied on the same factual
5 predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
6 2006).
7 We also deny the second petition, reviewing the BIA’s
8 denial of reconsideration and reopening for abuse of
9 discretion. Nolasco v. Holder, 637 F.3d 159, 162 (2d Cir. 2011)
10 (reconsideration); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
11 2006) (reopening).
12 To the extent Singh requested reconsideration, he disputed
13 the IJ’s adverse credibility determination by arguing that the
14 IJ could have interpreted the record differently. As the BIA’s
15 review is limited to a determination of whether factual findings
16 are clearly erroneous, the BIA did not abuse its discretion by
17 denying reconsideration. It is not permitted to reweigh or
18 reinterpret the facts. See 8 C.F.R. § 1003.1(d)(3)(i).
19 To the extent that Singh’s motion requested reopening, he
20 asserted that the Bharitya Janata Party’s victory in the
21 national elections of 2014 established changed country
5
1 conditions, and resulted in increased police harassment of his
2 wife. However, Singh did not meaningfully rebut the underlying
3 adverse credibility determination, and accordingly the agency
4 did not abuse its discretion in refusing to reopen proceedings.
5 See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005); Qin Wen Zheng
6 v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007).
7 For the foregoing reasons, the petitions for review are
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in these petitions is VACATED,
10 and any pending motion for a stay of removal in these petitions
11 is DISMISSED as moot. Any pending request for oral argument
12 in these petitions is DENIED in accordance with Federal Rule
13 of Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk
6