16-161
Singh v. Sessions
BIA
Poczter, IJ
A201 106 151
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 12th day of June, two thousand seventeen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT D. SACK,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 RAJINDERPAL SINGH,
14 Petitioner,
15
16 v. 16-161
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; Paul
28 Fiorino, Senior Litigation Counsel;
29 Judith R. O’Sullivan, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 Rajinderpal Singh, a native and citizen of
6 India, seeks review of a December 23, 2015, decision of the BIA,
7 affirming a March 26, 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 Rajinderpal Singh, No. A201 106 151 (B.I.A. Dec.
11 23, 2015), aff’g No. A201 106 151 (Immig. Ct. N.Y. City Mar.
12 26, 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 have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Singh’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on inconsistencies
2
1 in an applicant’s statements and evidence, “without regard to
2 whether” those inconsistencies go “to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
4 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
5 determination unless, from the totality of the circumstances,
6 it is plain that no reasonable fact-finder could make such an
7 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
8 Substantial evidence supports the adverse credibility
9 determination.
10 The agency reasonably relied on inconsistencies concerning
11 Singh’s date of birth. See 8 U.S.C. § 1158(b)(1)(B)(iii).
12 Singh testified that he was born on December 8, 1997, then
13 changed the year to 1976, and ultimately landed on 1977. The
14 IJ reasonably rejected Singh’s explanation that the wrong dates
15 “just came out of [his] mouth” because, as the IJ explained,
16 a discrepancy concerning “one of the most basic facts” about
17 him “called into question [his] actual identity” as well as “the
18 veracity of the entire claim.” See Majidi v. Gonzales, 430 F.3d
19 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
20 a plausible explanation for his inconsistent statements to
21 secure relief; he must demonstrate that a reasonable
22 fact-finder would be compelled to credit his testimony.”
3
1 (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 77, 76 (2d Cir.
2 2004))).
3 The agency also reasonably relied on the several
4 inconsistencies concerning the only two incidents of alleged
5 persecution in August and November 2010—events central to his
6 claim. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d
7 289, 295 (2d Cir. 2006) (“[A] material inconsistency in an
8 aspect of [an applicant’s] story that served as an example of
9 the very persecution from which he sought asylum . . . afforded
10 substantial evidence to support the adverse credibility
11 finding.”).
12 First, Singh provided inconsistent statements about his
13 injuries. Singh testified that he suffered injuries to his
14 feet, head, and back following the August 2010 attack, but his
15 father’s affidavit added that Singh fractured both legs. When
16 confronted with this discrepancy, Singh explained that his legs
17 were almost fractured, that he was unable to walk for up to 20
18 days, and speculated that his father’s illiteracy prevented him
19 from articulating that nuance. The IJ was not compelled to
20 accept this explanation given that Singh’s testimony gave no
21 indication of the supposed severity of the injury to his legs.
22 See Majidi, 430 F.3d at 80. This inconsistency was compounded
4
1 by the omission of the leg injuries from Singh’s application
2 and from an August 2010 hospital record. See Xiu Xia Lin, 534
3 F.3d at 166 n.3 (“An inconsistency and an omission
4 are . . . functionally equivalent.”). Singh could not
5 explain the omission from his application and instead stated
6 that he was told he sustained head and leg injuries. And the
7 IJ was not compelled to accept Singh’s explanation—that while
8 he was held in the hospital for 48 hours, he was unable to walk
9 for up to 20 days—because it failed to account for the stark
10 discrepancy in the description of the injuries and his omission
11 of the leg injuries from his asylum application. See Majidi,
12 430 F.3d at 80.
13 The agency also reasonably relied on Singh’s internally
14 inconsistent testimony concerning who visited him in the
15 hospital in August 2010. 8 U.S.C. S 1158(b)(1)(B)(iii).
16 Singh initially testified that he had no visitors; when pressed,
17 he stated that “some relatives” visited, and later added a visit
18 from the head of his political party.
19 As the agency found, Singh’s credibility was further
20 undermined by inconsistencies between his testimony and an
21 affidavit from the village head. Singh testified that after
22 his November 2010 beating, he, his father, and the village head
5
1 attempted to file a police report. When asked why the village
2 head’s affidavit omitted this information (and the November
3 2010 incident altogether), Singh responded that it was “normal”
4 for the village head to accompany villagers to the police (and,
5 presumably, not worth mentioning in the affidavit). The IJ
6 reasonably rejected this explanation given the severity of the
7 beating and the fact that Singh’s cousin allegedly was killed
8 in the same incident. See Majidi, 430 F.3d at 80. Moreover,
9 the village head’s affidavit and Singh’s testimony were
10 inconsistent in another way: the affidavit reflected that Singh
11 and his family members were kidnapped, but Singh denied this.
12 The IJ was not compelled to accept Singh’s explanation that
13 threats of kidnapping and kidnapping were the same because it
14 failed to explain the inconsistency given that the affidavit
15 mentioned both kidnapping and threats. Id.
16 Given the multiple inconsistencies identified, which
17 primarily concerned Singh’s alleged past persecution, it cannot
18 be said “that no reasonable fact-finder could make such a
19 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. Contrary
20 to Singh’s position in his brief, the adverse credibility
21 determination applies to both the August and November
22 incidents. Accordingly, because asylum, withholding of
6
1 removal, and CAT relief were all based on the same factual
2 predicate, the adverse credibility determination is
3 dispositive. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
4 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
7