15-2055
Singh v. Lynch
BIA
Segal, IJ
A200 814 768
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 8th day of August, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 MANDEEP SINGH,
14 Petitioner,
15
16 v. 15-2055
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Jesse M.
28 Bless, Senior Litigation Counsel;
29 Colette J. Winston, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 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 is
4 DISMISSED IN PART and DENIED IN PART.
5 Petitioner Mandeep Singh, a native and citizen of India,
6 seeks review of a May 27, 2015, decision of the BIA, affirming
7 a January 2, 2014, decision of an Immigration Judge (“IJ”)
8 denying Singh’s motion to continue and application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Mandeep Singh, No. A200 814 768 (B.I.A.
11 May 27, 2015), aff’g No. A200 814 768 (Immig. Ct. N.Y. City Jan.
12 2, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
16 391, 394 (2d Cir. 2005). The applicable standards of review
17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
19 I. Asylum: One-Year Jurisdictional Bar
20 We lack jurisdiction to review Singh’s petition as it
21 relates to the agency’s pretermission of asylum. An asylum
22 application must be filed within one year of an applicant’s
2
1 arrival in the United States, absent changed or extraordinary
2 circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). Although we
3 generally lack jurisdiction to review the agency’s
4 pretermission of asylum on timeliness grounds, we retain
5 jurisdiction to review “constitutional claims or questions of
6 law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
7 Singh asserts, contrary to his representations before the
8 BIA, that the agency’s pretermission determination was based
9 on fact-finding that is flawed by an error of law because the
10 record conclusively demonstrates that his prior counsel timely
11 field an asylum application. Singh argued before the BIA that
12 the record demonstrated that his prior counsel was ineffective
13 for failing to timely file his application. We decline to
14 consider Singh’s unexhausted legal challenge and dismiss his
15 petition for lack of jurisdiction as it relates to the agency’s
16 pretermission of asylum. See Lin Zhong v. U.S. Dep’t of
17 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that
18 judicially imposed issue exhaustion is mandatory).
19 II. Credibility-Based Denial of Withholding of Removal and
20 CAT Relief
21
22 For asylum applications like Singh’s, governed by the REAL
23 ID Act, the agency may, “[c]onsidering the totality of the
24 circumstances,” base a credibility finding on an asylum
3
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of his account, and inconsistencies in his
3 statements, “without regard to whether” they go “to the heart
4 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
5 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder could
8 make such an adverse credibility ruling.” Id. at 167. As
9 discussed below, substantial evidence supports the agency’s
10 adverse credibility determination.
11 The adverse credibility determination was properly based
12 on the inconsistency between Singh’s testimony and application
13 about whether his father reported Singh’s January 2010 beating
14 to the police. Singh’s application declared that his father
15 did not want to report this incident because he feared that it
16 would create more serious problems. However, when asked
17 whether his father reported the beating to the police, Singh
18 responded, “Yes, he did go.” When confronted with this
19 inconsistency, Singh paused; he then responded, “I don’t know
20 whether he did go or not.” When the IJ asked whether he was
21 changing his testimony, Singh reversed course: “No, I am still
22 saying that he did go . . . he told me that he did go.” The
4
1 IJ was entitled to rely on this inconsistency and reasonably
2 observed that Singh was simply changing his testimony to cover
3 up an obvious inconsistency.
4 The agency’s adverse credibility determination was also
5 properly based on the omission of Singh’s political activities
6 from his asylum application. See id. at 166 n.3 (“An
7 inconsistency and an omission are . . . functionally equivalent”
8 for credibility purposes). Singh testified that he was
9 politically active in India and that he accompanied his father
10 during his father’s political activities. When asked why his
11 application only mentioned his father’s political activities,
12 Singh responded that maybe the information “was missed.” The
13 IJ reasonably found that Singh gave no convincing explanation
14 for the omission of this important information. Majidi v.
15 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
16 do more than offer a plausible explanation for his inconsistent
17 statements to secure relief; he must demonstrate that a
18 reasonable fact-finder would be compelled to credit his
19 testimony.” (internal quotation marks and emphasis omitted)).
20 The agency also reasonably rested its credibility
21 determination on inconsistencies between Singh’s application
22 and testimony concerning his father’s September 2010 injury.
5
1 Singh’s application asserted that his father was attacked and
2 brutally beaten by local Hindus, which resulted in a broken
3 right knee and serious head injury. However, he testified that
4 his father suffered those injuries from a motorbike accident
5 when he was sideswiped by another vehicle. When confronted
6 with this inconsistency, Singh responded that his testimony was
7 correct. The IJ reasonably found it troubling that Singh
8 conceded that the representation in his application that his
9 father had been brutally beaten was false.
10 On appeal, Singh insists that the inconsistencies and
11 omissions were not directly material to his claims. Not so.
12 These inconsistencies concerned Singh and his father’s alleged
13 beatings in India. However, the materiality of the
14 inconsistencies is irrelevant, because “an IJ may rely on any
15 inconsistency or omission in making an adverse credibility
16 determination as long as the totality of the circumstances
17 establishes that an asylum applicant is not credible.” Xiu Xia
18 Lin, 534 F.3d at 167 (internal quotation marks and emphasis
19 omitted). The totality of the circumstances clearly supports
20 the IJ’s credibility determination here. Because Singh’s
21 claims for withholding of removal and CAT relief were based on
22 the same factual predicate, the adverse credibility
6
1 determination is dispositive of both claims. Paul v. Gonzales,
2 444 F.3d 148, 156-57 (2d Cir. 2006). We therefore deny the
3 petition as it relates to Singh’s claims for withholding of
4 removal and CAT relief.
5 III. Continuance Denial
6 Singh lastly asserts that the IJ erred in denying his motion
7 to continue in order to submit documents. The IJ’s denial of
8 a request for a continuance is reviewed “under a highly
9 deferential standard of abuse of discretion.” Morgan v.
10 Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). An IJ “may grant
11 a motion for continuance for good cause shown,” 8 C.F.R.
12 § 1003.29, and has the authority to set deadlines for the
13 submission of documents, id. § 1003.31(c). Although the
14 regulations do not define “good cause,” the agency requires that
15 a movant seeking a “continuance based upon an asserted lack of
16 preparation . . . . make a reasonable showing that the lack of
17 preparation occurred despite a diligent good faith effort to
18 be ready to proceed . . . [and] establish[] that th[e] denial
19 caused him actual prejudice and harm and materially affected
20 the outcome of his case.” In re Sibrun, 18 I. & N. Dec. 354,
21 356-57 (B.I.A. 1983).
7
1 The agency did not abuse its discretion in concluding that
2 Singh failed to meet the good cause standard. The IJ gave Singh
3 one year to submit additional supporting documents, and Singh
4 waited until after that submission deadline passed to request
5 a 90-day continuance. His explanation—that he did receive some
6 documents, but had to send them back to India to have them
7 translated from Hindi to English—does not amount to a
8 “reasonable showing that the lack of preparation occurred
9 despite a diligent good faith effort,” id. at 357.
10 For the foregoing reasons, the petition for review is
11 DISMISSED IN PART and DENIED IN PART. As we have completed our
12 review, any stay of removal that the Court previously granted
13 in this petition is VACATED, and any pending motion for a stay
14 of removal in this petition is DISMISSED as moot. Any pending
15 request for oral argument in this petition is DENIED in
16 accordance with Federal Rule of Appellate Procedure 34(a)(2),
17 and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
8