18-1814
Singh v. Barr
BIA
Poczter, IJ
A202 068 909
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 7th day of July, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 HARBHAJAN SINGH,
14 Petitioner,
15
16 v. 18-1814
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Genet Getachew, Brooklyn, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Linda S. Wernery,
27 Assistant Director; Gerald M.
28 Alexander, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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 Harbhajan Singh, a native and citizen of
6 India, seeks review of a May 17, 2018, decision of the BIA
7 affirming a July 5, 2017, decision of an Immigration Judge
8 (“IJ”) denying his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Harbhajan Singh, No. A202 068 909 (B.I.A. May
11 17, 2018), aff’g No. A202 068 909 (Immig. Ct. N.Y. City July
12 5, 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 We have reviewed the decisions of both the IJ and the
15 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
16 Cir. 2005). The standards of review are well established.
17 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
18 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the
19 circumstances, and all relevant factors, a trier of fact may
20 base a credibility determination on . . . the consistency
21 between the applicant’s or witness’s written and oral
22 statements . . . , the internal consistency of each statement,
2
1 the consistency of such statements with other evidence of
2 record . . . and any inaccuracies or falsehoods in such
3 statements, without regard to whether an inconsistency,
4 inaccuracy, or falsehood goes to the heart of the applicant’s
5 claim, or any other relevant factor.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
7 determination unless, from the totality of the circumstances,
8 it is plain that no reasonable fact-finder could make such an
9 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
11 at 76. In this case, substantial evidence supports the
12 adverse credibility determination given multiple
13 inconsistencies regarding the details of the two alleged
14 attacks against Singh and related events.
15 Singh alleged that members of the Badal Party attacked
16 him twice in 2014 because he was a member of the Shiromani
17 Akali Dal Amritsar Party (“SADA”). The agency reasonably
18 relied on several inconsistencies and variations in Singh’s
19 descriptions of the two attacks. As to the first attack,
20 Singh testified that the assailants asked him whether he
21 worked for SADA, but he later testified that they did not ask
22 him this question; and Singh testified that his attackers
3
1 told him that they were members of the Badal party, but he
2 later testified that they had not identified themselves but
3 had asked him to join their party. As to the second attack,
4 he testified that his assailants did not say anything during
5 the attack, but his mother’s and wife’s affidavits stated
6 that the attackers threatened to kill him if he continued to
7 work for SADA. Singh also stated during his credible fear
8 interview that the assailants searched his body after he fell
9 to the ground and pretended to lose consciousness, but he did
10 not testify at his hearing that they searched his body.
11 Although these inconsistencies are not glaring, an IJ may
12 rely on the “cumulative effect” of minor inconsistencies, see
13 Xiu Xia Lin, 534 F.3d at 167 (internal quotation marks
14 omitted), and we do not second-guess an IJ’s finding, where,
15 as here, it is a “permissible view[] of the evidence,” Siewe
16 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (internal
17 quotation marks omitted).
18 The agency also reasonably relied on several other
19 inconsistencies between Singh’s testimony and witness
20 affidavits. See 8 U.S.C. §1158(b)(1)(B)(iii); Xiu Xia Lin,
21 534 F.3d at 167. Singh testified that after his first attack,
22 his mother accompanied him to the police station, but his
4
1 mother’s, wife’s, and neighbor’s affidavits stated that his
2 father accompanied him. When asked to explain this
3 discrepancy, Singh stated the affidavits were mistakenly
4 referring to the second attack. However, the record shows
5 each affidavit described the first attack when stating that
6 Singh’s father went with him to the police station. The IJ
7 thus was not compelled to credit Singh’s explanation that
8 three individuals made the same error. See Majidi v.
9 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
10 do more than offer a plausible explanation for his
11 inconsistent statements to secure relief; he must demonstrate
12 that a reasonable fact-finder would be compelled to credit
13 his testimony.” (internal quotation marks and citations
14 omitted)); see also Mei Chai Ye v. U.S. Dep’t of Justice, 489
15 F.3d 517, 524 (2d Cir. 2007) (“[T]his court has . . . firmly
16 embraced the commonsensical notion that striking similarities
17 between affidavits are an indication that the statements are
18 ‘canned.’”). Singh also testified that his mother did not
19 attend SADA events; however, his mother’s affidavit stated
20 that she did, or at least that she “used to.” When asked to
21 explain this discrepancy, Singh changed his testimony to
22 state both that everyone in his family attended and that his
5
1 mother attended events before he joined the party.
2 Given that the record supports the inconsistencies
3 identified by the IJ, the agency reasonably relied on Singh’s
4 failure to rehabilitate his testimony with reliable
5 corroborating evidence. “An applicant’s failure to
6 corroborate his or her testimony may bear on credibility,
7 because the absence of corroboration in general makes an
8 applicant unable to rehabilitate testimony that has already
9 been called into question.” Biao Yang v. Gonzales, 496 F.3d
10 268, 273 (2d Cir. 2007). The affidavits from Singh’s mother,
11 wife, and neighbor were inconsistent with his testimony and
12 the IJ reasonably declined to give weight to these or other
13 letters because his mother and wife were interested witnesses
14 and none of the authors were available for cross-examination.
15 See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013)
16 (deferring to agency’s decision to afford little weight to
17 husband’s letter from China).
18 Accordingly, given Singh’s inconsistencies and the lack
19 of reliable corroboration, substantial evidence supports the
20 agency’s adverse credibility determination. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Biao Yang,
22 496 F.3d at 273. That determination is dispositive of
6
1 asylum, withholding of removal, and CAT relief because all
2 three claims were based on the same factual predicate. See
3 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7