17-739
Singh v. Sessions
BIA
Christensen, IJ
A205 935 135
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
16th day of October, two thousand eighteen.
PRESENT:
RICHARD C. WELSEY,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
AMRITPAL SINGH,
Petitioner,
v. 17-739
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Anas J. Ahmed, Pannun The Firm,
P.C., Jackson Heights, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Andrew N.
O’Malley, Senior Litigation
Counsel; Lindsay M. Murphy, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice,
Washington, DC.
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
DENIED.
Petitioner Amritpal Singh, a native and citizen of India,
seeks review of a February 17, 2017, decision of the BIA
affirming a July 20, 2016, 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 Amritpal Singh, No. A205 935 135 (B.I.A. Feb.
17, 2017), aff’g No. A205 935 135 (Immig. Ct. N.Y. City July
20, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). 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).
The governing REAL ID Act credibility standard provides
that the agency must “[c]onsider[] the totality of the
2
circumstances,” and may base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies or omissions
in his or his witness’s statements, “without regard to whether”
they go “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, 166-67.
“We defer . . . to an IJ’s credibility determination
unless . . . it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 167. For the reasons that follow, we conclude that
substantial evidence supports the agency’s adverse credibility
determination.
First, contrary to Singh’s assertions, the agency properly
relied on his border interview record when assessing
credibility. See Ramsameachire v. Ashcroft, 357 F.3d 169,
179-81 (2d Cir. 2004) (observing that a credibility
determination may be based on inconsistencies arising from an
airport interview). We exercise caution when reviewing border
interview statements because such interviews “may be perceived
. . . as coercive or threatening . . . [and] aliens may not be
entirely forthcoming in the initial interview.” Id. at 179.
The agency may nevertheless rely on border interview statements
3
when assessing credibility if the interview record “bears
hallmarks of accuracy and reliability.” Ming Zhang v. Holder,
585 F.3d 715, 721 (2d Cir. 2009) (quoting Ramsameachire, 357
F.3d at 181). Some of those hallmarks are that the interview
was memorialized in a typewritten document, was conducted
through an interpreter, and included questions designed to
elicit an asylum claim. Id. at 725. As the IJ correctly
observed, those hallmarks are present here. Moreover, as the
Government observes, Singh’s counsel did not object to the
admission of the border interview record before the IJ. The
agency therefore properly considered the interview record when
assessing Singh’s credibility.
Second, the agency reasonably relied on inconsistency
among Singh’s application, testimony, and border interview
about when he began having problems with members of the rival
Congress Party (“CP”). Xiu Xia Lin, 534 F.3d at 163-64, 167.
Singh provided in his application and testimony that he first
had problems in February 2011, but he stated during his 2013
border interview that his problems began four or five years
earlier. The agency was not required to credit Singh’s
explanation that his father had problems with the CP then
because it did not resolve the inconsistency given that Singh
4
was asked when his own problems with the CP began. See Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” (internal quotation marks omitted)).
Third, the agency reasonably relied on inconsistency among
Singh’s application, testimony, and interviews concerning his
reports to the police. Xiu Xia Lin, 534 F.3d at 163-64, 167.
Singh gave varying accounts of his reporting to police: he
stated during his border interview that he complained to the
police many times, but they refused to help; he stated during
his credible fear interview that he and his father reported both
attacks, but the police refused to help them and pushed them
out of the station each time; he provided in his application
that he and his father reported only the February 2013 attack;
and he testified that he reported only the February 2013 attack
with his father, but that his father had complained to the police
by himself many times. The agency was not required to credit
Singh’s explanation that he misspoke during his border
interview because he was nervous. See Majidi, 430 F.3d at
80-81. An applicant’s “mere recitation that he was nervous or
5
felt pressured during an [initial] interview will not
automatically prevent the IJ or BIA from relying [o]n statements
in such interviews when making adverse credibility
determinations,” Yun-Zui Guan, 432 F.3d at 397 n.6, and Singh’s
explanation did not resolve the inconsistency between the
subsequent credible fear interview and his application and
testimony.
Fourth, the agency reasonably relied on inconsistency
between Singh’s testimony and credible fear interview regarding
who attacked him in June 2012. Xiu Xia Lin, 534 F.3d at 163-64,
167. Singh testified that he recognized two of the men because
they had previously threatened him, but he stated during his
credible fear interview that he did not recognize any of his
attackers. Although Singh contends that the IJ erred by
failing to solicit an explanation for this inconsistency, the
Government is correct that Singh failed to exhaust this
challenge before the BIA. See Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that issue
exhaustion is mandatory). Regardless, even assuming that this
inconsistency was not obvious, and that the agency therefore
erred by failing to solicit an explanation, remand would be
futile given the support for the agency’s credibility
6
determination set forth above. See Ming Shi Xue v. BIA, 439
F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived
incongruities in an asylum applicant’s testimony are not
plainly obvious, an IJ cannot rely on them to support an adverse
credibility ruling without first identifying the alleged
inconsistencies for the applicant and giving the applicant an
opportunity to address them.”); Li Hua Lin v. U.S. Dep’t of
Justice, 453 F.3d 99, 106-07 (2d Cir. 2006) (observing that
remand is futile if the agency’s “errors are relatively minor
in light of the record as a whole”; for example, “where the IJ
or BIA’s reliance on an erroneous aspect of its reasoning is
so tangential that there is no realistic possibility that the
outcome would be different on remand.” (internal quotation
marks omitted)).1
Given the foregoing inconsistencies, the “totality of the
circumstances” supports the agency’s adverse credibility
determination. Xiu Xia Lin, 534 F.3d at 167. The adverse
credibility determination is dispositive of asylum,
withholding of removal, and CAT relief because all three claims
1 The IJ also considered SADM’s failure to mention any ill-treatment
of Petitioner in its letter supporting Petitioner’s claim. See Hong
Fei Gao v. Sessions, 891 F.3d 67, 81 (2d Cir. 2018). We need not
address whether this bears on the credibility determination, as the
BIA did not rely on it, and the above inconsistences, on which the
BIA did rely, are sufficient to support its decision.
7
are based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
8