NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UDHAM SINGH, No. 13-70315
Petitioner, Agency No. A079-587-663
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2019**
Before: FARRIS, D.W. NELSON, TROTT, Circuit Judges.
Udham Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s decision denying his application for withholding of removal and relief
under the Convention Against Torture (“CAT”). Singh concedes he is not eligible
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for asylum.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, applying the standards governing adverse
credibility determinations created by the REAL ID Act. Shrestha v. Holder, 590
F.3d 1034, 1039-40 (9th Cir. 2010). We deny in toto Singh’s petition for review.
The agency denied withholding based on adverse credibility. First, the
agency’s implausibility finding regarding the unlikely peregrinations of Singh’s
errant passport allegedly from Mexico to India and then to him in the United States
was well within its prerogative.
Second, the agency’s adverse credibility determination based on a previous
adverse credibility finding entered against Singh in an earlier proceeding, was
equally valid. As the BIA explained,
We find no clear error in the Immigration Judge’s
adverse credibility finding. See Matter of R-S-H-, 23
I&N Dec. 629, 637 (BIA 2003) (explaining the highly
deferential nature of clear error review). The
Immigration Judge relied in significant part on the fact
that the applicant, in the course of presenting his asylum
claim in his prior proceeding, was found not credible by
the Immigration Judge. This determination was upheld
by the Board and the United States Court of Appeals for
the Ninth Circuit. While an adverse credibility finding
might not necessarily dictate a lack of credibility in
subsequent proceedings, we find that its consideration in
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this case was appropriate. See section 241(b)(3)(C) of
the Act (referring to section 208(b)(1)(B)(iii) of the Act,
which states that credibility should be evaluated under
the totality of circumstances and based on all relevant
factors). Notably, the applicant’s prior claim was based
on his ties or imputed ties to the Shiromani Akali Dal
Mann political party, which is the basis of his current
claim. The finding was also upheld on multiple levels of
review, and the applicant still maintains that he had been
truthful.
Thus, substantial evidence supports the agency’s adverse credibility
determination.
Substantial evidence also supports the agency’s denial of CAT relief because
Singh failed to show it is more likely than not that he would be tortured by or with
the consent or acquiescence of the government of India. See Aden v. Holder, 589
F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED.
3 13-70315
Singh v. Barr, 13-70315
FILED
AUG 7 2019
D.W. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully disagree with my colleagues reasoning and decision in this
case. I would grant Singh’s petition.
The IJ’s adverse credibility determination is not supported by substantial
evidence because the IJ did not articulate “specific and cogent” reasons or “refer to
specific instances in the record” to support her determination. Shrestha v. Holder,
590 F.3d 1034, 1039, 1044 (9th Cir. 2010). All the IJ said was that she did not find
Singh’s explanation about the loss of his passport plausible (“The plausibility of
that statement is somewhat suspect.”). The IJ’s reason is neither specific nor
cogent.
Moreover, neither the IJ nor the BIA refer to specific instances in the record
to support an adverse credibility finding related to Singh’s explanation about how
he lost his passport. Nor could they. The record evidence corroborates Singh’s
explanation. It indicates that Singh used his passport to depart India and enter
Guatemala, he did not have his passport when he entered Mexico or the United
States, and Singh’s attorney had his passport at the time of the hearing.
Given this record evidence the IJ needed to specifically state why she found
it implausible that Singh’s agent in Guatemala sent Singh’s passport to Singh’s
mother, who then sent it to Singh in the United States. I suspect the reason the IJ
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did not offer a specific and cogent reason for the implausibility of Singh’s
explanation is because there appears to be no other explanation that accounts for
this evidence.
Because substantial evidence does not support the IJ’s adverse credibility
finding as it relates to Singh’s passport explanation, then all that is left to support
the IJ’s current adverse credibility finding is the adverse credibility finding from
the previous proceeding. In relying on the previous adverse credibility finding, the
IJ in did not identify any specific falsehood or inconsistency or state any reasons
why Singh’s previous testimony indicated that his current testimony was not
credible. By failing to identify any specific factor, the agency insulated the adverse
credibility determination from review. See Shrestha, 590 F.3d at 1042–44. First,
using the legal standard articulated above, e.g., specific and cogent reasons, the IJ
cannot merely cite to a previous adverse credibility finding, as the sole reason, to
support a current adverse credibility finding. Second, such a rule would create a
perverse incentive for IJs not to give reasons for their findings if there is a previous
adverse credibility finding. The cases cited by the government—Li and Yang—are
distinguishable.
In Al-Saher v. INS, we rejected the BIA’s reasoning and ruling that extended
detention and repeated police beatings for three days do not rise to the level of
torture, as defined by the Convention Against Torture (CAT), and rather are a
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lesser form of cruel, inhuman or degrading treatment. 268 F.3d 1143, 1147 (9th
Cir. 2001) (“The BIA addressed Al–Saher's torture claim and concluded that the
arrests did not amount to torture as defined in the regulations. Accepting Al–
Saher's testimony as true, we must disagree.”).
Moreover, the federal regulations that codify CAT state that pain or
suffering arising from inherent or incidental lawful sanctions do not amount to
torture. 8 C.F.R. § 208.18(a)(3). The key words here are lawful sanction. There
was nothing lawful about the police beatings from which Singh suffered. While it
is true that we have seen cases with more severe forms of torture, neither the case
law nor the relevant regulations say that only the most severe forms of torture
warrant relief.
I would grant Singh’s petition in its entirety.
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