17-405
Salhan v. Barr
BIA
Hom, IJ
A206 036 016
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 12th day of March, two thousand nineteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 JATINDER SALHAN,
14 Petitioner,
15
16 v. 17-405
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jatinder Salhan, Pro Se, S. Ozone
24 Park, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Stephen J.
28 Flynn, Assistant Director; Lynda
29 A. Do, Jeffrey R. Meyer,
30 Attorneys, 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
4 is DENIED.
5 Petitioner Jatinder Salhan, a native and citizen of
6 India, seeks review of a January 10, 2017, decision of the
7 BIA affirming an April 19, 2016, decision of an Immigration
8 Judge (“IJ”) denying Salhan’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jatinder Salhan, No. A 206
11 036 016 (B.I.A. Jan. 10, 2017), aff’g No. A 206 036 016
12 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 In lieu of filing a brief, the Government moved for
16 summary denial of Salhan’s petition for review.1 Rather than
17 determine if the petition is frivolous as is required for
18 summary denial, see Pillay v. INS, 45 F.3d 14, 17 (2d Cir.
19 1995), we construe the Government’s motion as its brief and
20 deny the petition on the merits.
1
Although the Government’s motion was filed more that a year
ago, Salhan has made no response.
2
1 Under the circumstances of this case, we have reviewed
2 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
3 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review adverse
4 credibility determinations under a substantial evidence
5 standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
6 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The governing
7 REAL ID Act credibility standard provides as follows:
8 Considering the totality of the circumstances, and
9 all relevant factors, a trier of fact may base a
10 credibility determination on . . . the consistency
11 between the applicant’s or witness’s written and
12 oral statements . . . , the internal consistency of
13 each such statement, the consistency of such
14 statements with other evidence of record . . . , and
15 any inaccuracies or falsehoods in such statements,
16 . . . or any other relevant factor.
17
18 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
19 credibility determination unless . . . it is plain that no
20 reasonable fact-finder could make such an adverse credibility
21 ruling.” Xiu Xia Lin, 534 F.3d at 167.
22 The agency reasonably relied on Salhan’s demeanor, noting
23 that his testimony was vague and lacking in material detail
24 and that certain answers were not responsive to questions.
25 See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
26 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
27 deference is given to the trier of fact’s assessment of
28 demeanor). Where an applicant gives “spare” testimony, the
3
1 fact-finder may “fairly wonder whether the testimony is
2 fabricated,” and “may wish to probe for incidental details,
3 seeking to draw out inconsistencies that would support a
4 finding of lack of credibility.” Jin Shui Qiu v. Ashcroft,
5 329 F.3d 140, 152 (2d Cir. 2003), overruled on other grounds
6 by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305
7 (2d Cir. 2007). Although spare testimony is insufficient to
8 support an adverse credibility determination absent an
9 opportunity to expand, here Salhan’s attorney, the
10 Government’s attorney, and the IJ were unsuccessful in their
11 attempts to solicit detail. See Shunfu Li v. Mukasey, 529
12 F.3d 141, 147 (2d Cir. 2007). Although pressed to give more
13 detail regarding his party activities, Salhan could testify
14 only regarding the two occasions on which he was allegedly
15 assaulted by Congress Party members, which conflicts with his
16 testimony that he attended “all” of the Mann Party rallies
17 and functions and suggests that he fabricated his claim. See
18 Jin Shui Qiu, 329 F.3d at 152.
19 Furthermore, the record reflects that Salhan gave evasive
20 and non-responsive answers when asked by the IJ if he
21 consulted with an attorney in India. Rather than answer,
22 Salhan described attacks on Sikhs in 1984, prior to his birth.
23
4
1 Salhan did not rehabilitate his credibility with
2 corroborating evidence. “An applicant’s failure to
3 corroborate his . . . testimony may bear on credibility,
4 because the absence of corroboration in general makes an
5 applicant unable to rehabilitate testimony that has already
6 been called into question.” Biao Yang v. Gonzales, 496
7 F.3d 268, 273 (2d Cir. 2007). Although Salhan testified
8 that his mother paid authorities to release him from
9 detention, he did not know how much money his mother paid,
10 and his mother’s letter does not mention any payment.
11 Finally, Salhan did not produce any country conditions
12 evidence discussing the treatment of Mann Party members.2
13 Given Salhan’s vague testimony, lack of responsiveness,
14 and failure to rehabilitate his testimony with
15 corroborating evidence, the totality of the circumstances
16 supports the agency’s adverse credibility ruling. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
2 We decline to reach the IJ’s finding regarding Salhan’s
inconsistent testimony regarding his level of religious
observance. The BIA did not address the finding, which is
tangential given that Salhan’s claim is based on political, not
religious, persecution. Even assuming error, the remaining
findings provide substantial evidence for the adverse credibility
determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 339 (2d Cir. 2006) (declining to remand despite error where
substantial evidence supported the adverse credibility
determination).
5
1 167. Because Salhan’s claims were all based on the same
2 factual predicate, the adverse credibility determination is
3 dispositive of asylum, withholding of removal, and CAT
4 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
5 Cir. 2006). Because the adverse credibility determination
6 is dispositive, we do not reach the agency’s independent
7 denial of Salhan’s applications for lack of corroboration.
8 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
9 general rule courts and agencies are not required to make
10 findings on issues the decision of which is unnecessary to
11 the results they reach.”).
12 For the foregoing reasons, the motion for summary denial
13 is CONSTRUED as the Government’s brief and the petition for
14 review is DENIED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
6