18-2676
Singh v. Barr
BIA
Schoppert, IJ
A205 585 561
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 13th day of November, two thousand
5 nineteen.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 MICHAEL H. PARK,
11 Circuit Judges.
12 _____________________________________
13 AZADWINDER SINGH,
14 Petitioner,
15
16 v. 18-2676
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Usman B. Ahmad, Long Island City,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Julie M.
28 Iversen, Senior Litigation
29 Counsel; Kathryn M. McKinney,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, 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 Azadwinder Singh, a native and citizen of
6 India, seeks review of an August 14, 2018 decision of the BIA
7 affirming a September 13, 2017 decision of an Immigration
8 Judge (“IJ”) denying his application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Azadwinder Singh, No. A 205 585 561 (B.I.A.
11 Aug. 14, 2018), aff’g No. A 205 585 561 (Immig. Ct. N.Y. City
12 Sept. 13, 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 In lieu of filing a brief, the Government moves for
15 summary denial of Singh’s petition for review. Rather than
16 determine if the petition is frivolous as is required for
17 summary denial, see Pillay v. INS, 45 F.3d 14, 17 (2d Cir.
18 1995), we construe the Government’s motion as its brief and
19 deny the petition on the merits.
20 Under the circumstances of this case, we have reviewed
21 both the BIA’s and IJ’s decisions. See Yan Chen v. Gonzales,
22 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
2
1 of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
3 (2d Cir. 2018).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on . . . the consistency between the applicant’s
7 or witness’s written and oral statements . . . , the internal
8 consistency of each such statement, [and] the consistency of
9 such statements with other evidence of record . . . .”
10 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
11 credibility determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make such an adverse credibility ruling.” Xiu Xia Lin
14 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
15 Gao, 891 F.3d at 76. Substantial evidence supports the
16 agency’s determination that Singh was not credible as to his
17 claim of past persecution by the Akali Dal Badal party on
18 account of his participation in the Congress Party.
19 As an initial matter, the agency did not err in finding
20 that Singh’s statements at his initial interviews with
21 Customs and Border Patrol and an asylum officer bore
22 sufficient indicia of reliability so as to warrant
3
1 evidentiary weight. See Ming Zhang v. Holder, 585 F.3d 715,
2 725 (2d Cir. 2009). The records do not indicate that Singh
3 had difficulty communicating, and the records are
4 typewritten, in question-and-answer format, and purport to be
5 a “full, true and correct” account of the interview.
6 Moreover, Singh testified that he remembered making the
7 specific statements at his interview that were inconsistent
8 with his later testimony.
9 Given Singh’s inconsistent statements and lack of
10 reliable corroboration, the record supports the agency’s
11 adverse credibility determination. First, Singh told border
12 officials that he was attacked by Akali Dal Badal party
13 members four or five times, but he later testified that he
14 was beaten only twice. The agency was not required to credit
15 Singh’s explanation that he gave different accounts because
16 he was nervous. See Yun-Zui Guan v. Gonzales, 432 F.3d 391,
17 397 n.6 (2d Cir. 2005).
18 Second, the agency reasonably relied on the inconsistency
19 in Singh’s statements about his interactions with the police
20 in India. He initially stated he was not arrested in India,
21 then said that he was arrested and beaten by the police, then
22 stated the police threatened but did not beat him. The
4
1 changing content of his testimony was obvious from the records
2 of the interviews, so the IJ was not required to solicit an
3 explanation for the inconsistencies. Cf. Ming Shi Xue v.
4 BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived
5 incongruities in an asylum applicant’s testimony are not
6 plainly obvious, an IJ cannot rely on them to support an
7 adverse credibility ruling without first identifying the
8 alleged inconsistencies for the applicant and giving the
9 applicant an opportunity to address them.”).
10 Third, the agency reasonably found that Singh failed to
11 submit reliable documentary evidence. An asylum applicant’s
12 failure to corroborate may bear on his credibility, “because
13 the absence of corroboration in general makes an applicant
14 unable to rehabilitate testimony that has already been called
15 into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
16 Cir. 2007). The agency acted within its discretion in
17 affording little weight to Singh’s evidence. See Y.C. v.
18 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer
19 to the agency’s evaluation of the weight to be afforded an
20 applicant’s documentary evidence.”). Singh’s parents’
21 affidavits were nearly identical to his own in describing his
22 assault by Akali Dal Badal members. See Mei Chai Ye v. U.S.
5
1 Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007) (explaining
2 that we “ha[ve] firmly embraced the commonsensical notion
3 that striking similarities between affidavits are an
4 indication that the statements are ‘canned’”). An affidavit
5 Singh produced from a Congress Party leader conflicted with
6 Singh’s own testimony, and Singh appeared to lack knowledge
7 of its contents. See Siewe v. Gonzales, 480 F.3d 160, 170
8 (2d Cir. 2007) (“[A] single false document or a single
9 instance of false testimony may (if attributable to the
10 petitioner) infect the balance of the alien’s uncorroborated
11 or unauthenticated evidence.”). And the authors of the
12 statements were not subject to cross-examination. See Matter
13 of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010), rev’d
14 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
15 Cir. 2012).
16 Given these inconsistencies and lack of reliable
17 corroboration, the agency’s adverse credibility determination
18 is supported by substantial evidence and was dispositive of
19 asylum, withholding of removal, and CAT relief. See Paul v.
20 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Singh’s
21 ineffective assistance claim also fails: As the BIA observed,
22 Singh did not comply with the procedural requirements of
6
1 Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
2 Accordingly, he forfeited his ineffective assistance claim.
3 See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46–
4 48 (2d Cir. 2005). Moreover, as discussed above, the
5 interview records were sufficiently reliable, so counsel
6 neither acted unreasonably nor caused prejudice by failing to
7 challenge their admission. See Rabiu v. INS, 41 F.3d 879,
8 882 (2d Cir. 1994).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
7