14-4288 (L)
Singh v. Lynch
BIA
Poczter, IJ
A200 625 215
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 15th day of September, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HARPREET SINGH,
14 Petitioner,
15 14-4288(L),
16 v. 15-3021(Con)
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Keith I.
28 McManus, Senior Litigation Counsel;
29 Brendan P. Hogan, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of these petitions for review of two
2 Board of Immigration Appeals (“BIA”) decisions, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petitions for review
4 are DENIED.
5 Petitioner Harpreet Singh, a native and citizen of India,
6 seeks review of (1) the October 17, 2014, decision of the BIA,
7 affirming a May 29, 2013, decision of an Immigration Judge
8 (“IJ”) denying Singh’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”), In re Harpreet Singh, No. A200 625 215 (B.I.A. Oct.
11 17, 2014), aff’g No. A200 625 215 (Immig. Ct. N.Y. City May 29,
12 2013), and (2) the August 27, 2015, decision of the BIA denying
13 his motion to reopen, In re Harpreet Singh, No. A200 625 215
14 (B.I.A. Aug. 27, 2015). We assume the parties’ familiarity
15 with the underlying facts and procedural history in this case.
16 I. Merits – Docket Number 13-3120(L)
17 Under the circumstances of this case, we have considered
18 both the IJ’s and the BIA’s opinions “for the sake of
19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
20 524, 528 (2d Cir. 2006). The applicable standards of review
21 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency
23 may, “[c]onsidering the totality of the circumstances,” base
2
1 a credibility finding on inconsistencies in an asylum
2 applicant’s statements and other record evidence “without
3 regard to whether” they go “to the heart of the applicant’s
4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
5 at 163-64. Substantial evidence supports the agency’s
6 determination that Singh was not credible.
7 The IJ reasonably relied on record inconsistencies. Singh
8 testified that members of an opposing political party had come
9 to his family’s home to threaten him in January 2010 and that
10 police had come to threaten him the following month. However,
11 his mother’s affidavit omitted any mention of the second
12 incident. See Xiu Xia Lin, 534 F.3d at 166 n.3 (“[a]n
13 inconsistency and an omission are . . . functionally
14 equivalent.”). In addition, Singh omitted from his asylum
15 application his assertion that he lived with friends and
16 relatives in India after being threatened. See id. He also
17 failed to disclose in his application (and provided
18 inconsistent testimony about) his arrest and conviction in the
19 United States. See id. at 166 n.3 & 167. Singh did not provide
20 a compelling explanation for any of the record inconsistencies.
21 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
22 Having questioned Singh’s credibility, the IJ reasonably
23 relied further on his failure to provide certain corroborating
3
1 evidence to rehabilitate his testimony. See Biao Yang v.
2 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Affidavits from
3 Singh’s mother and his political party did not corroborate his
4 assertion that his safety was threatened twice in 2010. And
5 Singh did not submit a statement or testimony from his cousin
6 (who purportedly experienced the same treatment in India and
7 fled the country at the same time) even though he admitted that
8 he could have contacted his cousin who was also in the United
9 States. See Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir.
10 2009) (“[T]he alien bears the ultimate burden of introducing
11 such evidence without prompting from the IJ.”).
12 Given the inconsistency and corroboration findings, the
13 agency’s adverse credibility determination is supported by
14 substantial evidence, and is dispositive of Singh’s claims for
15 asylum, withholding of removal, and CAT relief. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156-57
17 (2d Cir. 2006). Therefore, we do not reach the agency’s
18 alternative burden finding.
19 II. Motion to Reopen – Docket Number 15-3021(Con)
20 We have reviewed the BIA’s denial of Singh’s motion to
21 reopen for abuse of discretion, and any factual findings for
22 substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138,
23 168-69 (2d Cir. 2008). Singh’s motion to reopen was untimely
4
1 filed because the agency’s final order of removal was entered
2 in October 2014 and Singh did not file his motion to reopen until
3 June 2015, well beyond the 90-day deadline. See 8 U.S.C.
4 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The BIA did not
5 err in declining to equitably toll the time period based on
6 Singh’s ineffective assistance of counsel claim.
7 In order to prevail on a claim of ineffective assistance
8 of counsel, a movant must show that competent counsel would have
9 acted otherwise, and that the alien was prejudiced by his
10 counsel’s performance. Rabiu v. INS, 41 F.3d 879, 882-83 (2d
11 Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993).
12 Singh failed to satisfy either prong.
13 Singh argues that his former counsel was ineffective
14 because he omitted the addresses where Singh hid in India and
15 Singh’s criminal record from Singh’s asylum application.
16 Singh continues that he was prejudiced as a result because the
17 IJ found his testimony inconsistent with his application based
18 on those omissions. However, Singh swore before the IJ that
19 he was aware of the contents of his application and that it was
20 correct. Furthermore, even if Singh’s former counsel was
21 deficient for failing to disclose the conviction (although the
22 record indicates that Singh failed to inform counsel of it),
23 Singh cannot demonstrate prejudice as a result because Singh
5
1 testified falsely that he had never been charged with a crime
2 in the United States thereby impugning his credibility
3 irrespective of counsel’s actions. See Rabiu, 41 F.3d at
4 882-83; see also Xiu Xia Lin, 534 F.3d at 166-67. We also note
5 that Singh’s allegations of ineffective assistance before the
6 IJ do not impact several of the findings that remain as valid
7 bases for the adverse credibility determination.
8 Finally, Singh argues that counsel was ineffective on
9 appeal to the BIA by failing to adequately explain the record
10 inconsistencies or lack of corroboration. However, Singh has
11 not demonstrated that counsel was ineffective or that he was
12 prejudiced to this extent because, other than his conclusory
13 assignment of error, he has not described the available
14 explanations that should have been proffered. See Rabiu, 41
15 F.3d at 882-83.
16 Accordingly, because Singh failed to demonstrate that his
17 former counsel was ineffective or establish a realistic chance
18 that the IJ would have found him credible but for counsel’s
19 performance, the BIA did not abuse its discretion in rejecting
20 Singh’s ineffective assistance of counsel claim. See id.
21 For the foregoing reasons, the petitions for review are
22 DENIED. As we have completed our review, any stay of removal
23 that the Court previously granted in these petitions is VACATED,
6
1 and any pending motion for a stay of removal in these petitions
2 is DISMISSED as moot. Any pending request for oral argument
3 in these petitions is DENIED in accordance with Federal Rule
4 of Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O=Hagan Wolfe, Clerk
7