16-852
Singh v. Sessions
BIA
Vomacka, IJ
A200 206 661
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 10th day of April, two thousand seventeen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 TERJINDER SINGH,
14 Petitioner,
15
16 v. 16-852
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
24 York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General;
28 Michelle G. Latour, Deputy Director;
29 Victor M. Lawrence, Senior
30 Litigation Counsel, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
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 DENIED.
5 Petitioner Terjinder Singh, a native and citizen of India,
6 seeks review of a February 22, 2016, decision of the BIA
7 affirming an October 16, 2014, 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 Terjinder Singh, No. A200 206 661 (B.I.A. Feb.
11 22, 2016), aff’g No. A200 206 661 (Immig. Ct. N.Y. City Oct.
12 16, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 As an initial matter, the agency acted within its
15 discretion in excluding two letters that Singh submitted on the
16 day of his second merits hearing, over two months after the
17 deadline for filing evidence, because Singh did not establish
18 good cause for the late filing. See Dedji v. Mukasey, 525 F.3d
19 187, 191 (2d Cir. 2008).
20 Moreover, the agency’s adverse credibility determination
21 is supported by substantial evidence. See 8 U.S.C.
22 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
23 (2d Cir. 2008). Under the circumstances of this case, we have
2
1 reviewed both the BIA’s and IJ’s decisions. See Yun-Zui Guan
2 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The agency may,
3 “[c]onsidering the totality of the circumstances,” base an
4 adverse credibility finding on an applicant’s inconsistent
5 statements, including testimony that conflicts with the asylum
6 application or other record evidence. 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
8 defer . . . to an IJ’s credibility determination unless, from
9 the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin, 534 F.3d at 167. Further, “[a]
12 'petitioner must do more than offer a plausible explanation for
13 his inconsistent statements to secure relief; he must
14 demonstrate that a reasonable fact-finder would be compelled
15 to credit his testimony.’” Majidi v. Gonzales, 430 F.3d 77,
16 80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d
17 66, 76 (2d Cir. 2004)).
18 Substantial evidence supports the agency’s determination
19 that Singh was not credible. First, the agency reasonably
20 relied on the contradiction between Singh’s testimony that he
21 knew that the creation of a separate Sikh state called Khalistan
22 was a “main goal” of his party and his failure to mention
23 Khalistan when asked about his party’s objectives during his
3
1 credible fear interview. Xiu Xia Lin, 534 F.3d at 166-67 & n.
2 3 (“An inconsistency and an omission are . . . functionally
3 equivalent” for credibility purposes). While the agency
4 should not place too much weight on an applicant’s lack of
5 doctrinal knowledge, see Rizal v. Gonzales, 442 F.3d 84, 90-91
6 (2d Cir. 2006), in this case the agency was relying on Singh’s
7 omission of information that he claimed to be aware of.
8 Second, the agency reasonably relied on discrepancies in
9 Singh’s credible fear interview, his asylum application, and
10 his testimony regarding whether it was Singh himself or his
11 family members who reported the 2011 attack to the police. In
12 his credible fear interview, Singh stated that his family
13 members reported the attack to the police, who failed to act.
14 In his asylum application, however, Singh stated that he
15 reported the 2011 attack himself: “I again reported this attack
16 to the police. I request[ed] some action against the attacks.
17 I also request[ed] some protection for myself. But [the]
18 police failed to do either of these.” But at his hearing, Singh
19 backtracked, testifying that his family reported the attack to
20 the police. The agency reasonably concluded that this
21 discrepancy undermined Singh’s credibility, particularly as it
22 related to one of only two allegations of past harm. Xiu Xia
23 Lin, 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency
4
1 or omission in making an adverse credibility determination as
2 long as the ‘totality of the circumstances’ establishes that
3 an asylum applicant is not credible.” (quoting 8 U.S.C.
4 § 1158(b)(1)(B)(iii)); Xian Tuan Ye v. Dep’t of Homeland Sec.,
5 446 F.3d 289, 295 (2d Cir. 2006) (even one material
6 inconsistency may provide substantial evidence for adverse
7 credibility determination).
8 Finally, the agency reasonably relied on inconsistencies
9 regarding Singh’s motivation for coming to the United States.
10 Singh told Border Patrol officers that he came to the United
11 States to work for 5 or 6 years and he did not have any fear
12 of returning to India. At his hearing, Singh acknowledged that
13 he made these statements but explained they were untrue: he was
14 hungry and thirsty because he had “lived in the jungle for so
15 many days” and he did not “know what [he] was saying.” Later,
16 he added that the interview was conducted in English, which he
17 did not understand very well, and that he did not know what was
18 written on the form he signed.
19 While the agency should be cautious in giving weight to
20 these types of border interviews, see Ramsameaschire v.
21 Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004), any lack of
22 reliability was overcome by Singh’s testimony that he made the
23 statements in question. Singh’s explanation that he was hungry
5
1 and thirsty is not compelling because he acknowledged that he
2 was able to eat before the interview, and in any case does not
3 explain why he would state that he was not afraid of returning
4 to India when his alleged purpose in coming to the United States
5 was to seek asylum. Singh now argues that he had a “mixed
6 motive” for coming to the United States, but this does not
7 explain why he would tell U.S. officials that he did not have
8 a fear of returning to India. Majidi, 430 F.3d at 80-81.
9 Additionally, Singh’s motivation is further called into
10 question because he obtained his passport in October 2010, more
11 than a month before his first alleged attack. Singh explained
12 that his mother wanted him to obtain a passport because he was
13 “feeling danger” even before he was attacked; the IJ was not
14 required to credit this explanation because Singh’s asylum
15 application stated that he was “targeted for the first time”
16 in December 2010. Majidi, 430 F.3d at 80-81.
17 The IJ reasonably concluded that Singh’s corroborating
18 evidence did not rehabilitate Singh’s claim, given the
19 inconsistencies between that evidence and Singh’s testimony and
20 because Singh did not provide a letter from the Mann Party in
21 India confirming his membership. Biao Yang v. Gonzales, 496
22 F.3d at 268, 273 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of
23 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting that the weight
6
1 accorded to the applicant’s evidence lies largely within the
2 discretion of the agency).
3 Given the multiple discrepancies relating to Singh’s
4 claim, as well as the lack of rehabilitative corroborating
5 evidence, the totality of the circumstances supports the
6 agency’s ruling. Xiu Xia Lin, 534 F.3d at 167. Because
7 Singh’s claims were all based on the same factual predicate,
8 the adverse credibility determination is dispositive of asylum,
9 withholding of removal, and CAT relief. Paul v. Gonzales, 444
10 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DENIED as moot. Any pending request for oral argument in
16 this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
7