15-3552-ag
Singh v. Sessions
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 14th day of April, two thousand
seventeen.
PRESENT:
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
LASHANN DEARCY HALL,
District Judge.*
_____________________________________
JAGJEET SINGH,
Petitioner,
v. 15-3552-ag
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
For Petitioner: GURPATWANT SINGH PANNUN, Jackson
Heights, N.Y.
For Respondent: BRENDAN P. HOGAN, Trial Attorney;
Benjamin C. Mizer, Principal Deputy
* Judge LaShann DeArcy Hall, United States District Judge for the
Eastern District of New York, sitting by designation.
Assistant Attorney General; Song Park,
Senior Litigation Counsel; Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED.
Petitioner Jagjeet Singh, a native and citizen of India, seeks review of an
October 16, 2015, decision of the BIA affirming a December 9, 2013, decision of
an Immigration Judge (“IJ”) denying Singh’s application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Jagjeet Singh, No. A205 427 652 (B.I.A. Oct. 16, 2015), aff’g
No. A205 427 652 (Immig. Ct. N.Y. City Dec. 9, 2013). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered both the IJ’s
and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008); Pierre v. Gonzales, 502 F.3d
109, 113 (2d Cir. 2007).
A. Asylum
Our jurisdiction to review the agency’s finding that an asylum
application is untimely is limited to constitutional claims and questions of law.
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8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). The agency erred as a matter of law in
pretermitting Singh’s asylum application as untimely filed.
An asylum applicant must “demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Here,
however, the agency required Singh to definitively establish his arrival date,
and ignored evidence that Singh lived in India during the year preceding his
filing, which was material to whether he filed his application within one year
of his arrival in the United States. Accordingly, the agency erred as a matter
of law by applying an incorrect burden and ignoring material evidence as to
the timeliness of Singh’s application and remand is required. See 8 U.S.C.
§ 1158(a)(2)(B); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329
(2d Cir. 2006) (explaining that application of “legally erroneous standard” or
“fact-finding which is flawed by error of law” are reviewable issues).
B. Withholding of Removal and CAT Relief
“Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the . . . consistency
between the applicant’s . . . written and oral statements (whenever made and
whether or not under oath, and considering the circumstances under which
the statements were made), . . . without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64. The agency’s adverse
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credibility determination is not supported by the totality of the circumstances.
The agency found Singh not credible as to his claim that he was detained
and beaten on two occasions in India because he omitted certain details of
those beatings from his asylum application. The agency may, in certain
circumstances, rely on omissions from an application in rendering an adverse
credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
at 166–67 & n.3. However, an asylum applicant is not required to provide
every detail of his claim in the application. See Secaida-Rosales v. INS, 331
F.3d 297, 308 (2d Cir. 2003) (“Although the application invites the applicant to
attach additional pages, we think the small space on the form itself would
hardly indicate to an applicant that the failure to include every detail
regarding the basis for asylum could later lead to an adverse credibility
finding when the applicant elaborates on [those dates] in the course of a
deportation hearing.”), superseded by statute on other grounds as recognized in
Xiu Xia Lin, 534 F.3d at 167. Given that Singh’s testimony and application
were virtually identical with only one or two descriptive details missing from
his initial written statement, the IJ erred in characterizing the statements as
inconsistencies or omissions when viewed in light of the totality of the
circumstances. See id.; see also 8 U.S.C. § 1158(b)(1)(B)(iii).
Without an adequate basis for questioning Singh’s credibility, the
agency was not permitted to rely solely on a failure to corroborate to find him
not credible. See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000); Chuilu Liu
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v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009). Because we cannot
confidently predict that the agency would have made the same decision absent
the identified errors, remand is required. See Xiao Ji Chen, 471 F.3d at 339.
Finally, we note that insofar as the BIA affirmed the IJ’s alternative
finding that Singh could relocate within India to avoid persecution, that
finding was erroneous because the IJ improperly placed the burden of proof on
Singh when his alleged persecutor was the Indian government. See 8 C.F.R.
§ 1208.16(b)(3)(ii) (“In cases in which the persecutor is a government or is
government-sponsored, or the applicant has established persecution in the
past, it shall be presumed that internal relocation would not be reasonable,
unless the Service establishes by a preponderance of the evidence that under
all circumstances it would be reasonable for the applicant to relocate.”).
For the foregoing reasons, the petition for review is GRANTED, and the
case is REMANDED for further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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