Singh v. Barr

18-3814
Singh v. Barr
BIA
Schoppert, IJ
A 200 905 510
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 2nd day of November, two thousand twenty.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 KULVIR SINGH,
14 Petitioner,
15
16 v. 18-3814
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mona Liza F. Lao, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Erica
28 B. Miles, Senior Litigation
 1 Counsel; Imran R. Zaidi, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Kulvir Singh, a native and citizen of India,

11 seeks review of a November 30, 2018 decision of the BIA

12 affirming an October 3, 2017 decision of an Immigration Judge

13 (“IJ”) denying Singh’s application for asylum, withholding of

14 removal, and relief under the Convention Against Torture

15 (“CAT”). In re Kulvir Singh, No. A 200 905 510 (B.I.A. Nov.

16 30, 2018), aff’g No. A 200 905 510 (Immig. Ct. N.Y. City

17 Oct. 3, 2017). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 Rather than file a brief, the Government has moved for

20 summary denial. We deny the motion because summary denial

21 is reserved for frivolous cases. See United States v. Davis,

22 598 F.3d 10, 13-14 (2d Cir. 2010). However, we construe that

23 motion as the Government’s brief and deny the petition on the

24 merits because, as discussed below, the adverse credibility
2
 1 determination is supported by substantial evidence.

2 We have reviewed both the IJ’s and the BIA’s decisions

3 “for the sake of completeness.” Wangchuck v. Dep’t of

4 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The

5 applicable standards of review are well established. See 8

6 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

7 67, 76 (2d Cir. 2018) (reviewing adverse credibility

8 determination for substantial evidence).

9 “Considering the totality of the circumstances, and all

10 relevant factors, a trier of fact may base a credibility

11 determination on . . . the consistency between the applicant’s

12 . . . written and oral statements . . . , the internal

13 consistency of each such statement, [and] the consistency of

14 such statements with other evidence of record . . . , without

15 regard to whether an inconsistency, inaccuracy, or falsehood

16 goes to the heart of the applicant’s claim, or any other

17 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer

18 . . . to an IJ’s credibility determination unless, from the

19 totality of the circumstances, it is plain that no reasonable

20 fact-finder could make such an adverse credibility ruling.”

21 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

3
 1 accord Hong Fei Gao, 891 F.3d at 76.

2 The agency properly considered that Singh omitted from

3 his asylum application that he lived in Jordan for two years.

4 In his application, Singh reported that he lived in India

5 continuously from 1983 (when he was born) to 2013 (when he

6 left for the United States), despite a question instructing

7 him to provide all addresses for the past five years. In his

8 accompanying written statement and in a supplemental

9 statement submitted prior to his hearing, he did not mention

10 living in Jordan. On cross-examination, however, he stated

11 that he fled to Jordan from India for two years starting in

12 2009 because of unspecified “threats” (presumably from the

13 Congress Party). See Certified Administrative Record (“CAR”)

14 at 146-47. When asked why he failed to mention his time in

15 Jordan in his asylum application, he said that question was

16 not asked, see CAR at 147, but this explanation did not

17 resolve the discrepancy because the application requires a

18 list of prior residences, see Majidi v. Gonzales, 430 F.3d

19 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

20 a plausible explanation for his inconsistent statements to

21 secure relief; he must demonstrate that a reasonable fact-

4
 1 finder would be compelled to credit his testimony.” (internal

2 quotation marks omitted)).

3 While the agency may err if it relies too heavily on

4 minor omissions (at least where the omitted information would

5 have supplemented, rather than contradicted, earlier

6 statements), the agency did not err here because the omission

7 related to Singh’s central claim that he was afraid of the

8 Congress Party. See Ming Zhang v. Holder, 585 F.3d 715, 726

9 (2d Cir. 2009) (holding that the agency may “draw an adverse

10 inference about petitioner’s credibility based, inter alia,

11 on h[is] failure to mention” important details or events in

12 prior statements). And it was reasonable to expect Singh to

13 include the fact that he fled the country because of threats,

14 as that fact goes both to his subjective fear and the severity

15 of the threats. See Hong Fei Gao, 891 F.3d at 78 (holding

16 that “the probative value of a witness’s prior silence on

17 particular facts depends on whether those facts are ones the

18 witness would reasonably have been expected to disclose”).

19 Relatedly, Singh’s testimony was inconsistent with his

20 credible fear interview as to why he moved to Jordan. Singh

21 never mentioned living in Jordan when providing direct

5
 1 testimony, and on cross-examination, he told the Department

2 of Homeland Security that he went to Jordan to escape

3 unspecified “threats.” See CAR at 146–47. But at a credible

4 fear interview a few weeks after he entered the United States,

5 he stated that he went to Jordan to work. Singh had no

6 compelling explanation for this inconsistency and simply

7 repeated both facts, that he received threats and went to

8 Jordan to work. See Majidi, 430 F.3d at 80. He never

9 specified who threatened him, how often he was threatened,

10 and what the threats were.

11 Having questioned Singh’s credibility, the agency

12 reasonably relied on his failure to rehabilitate his

13 testimony with reliable corroborating evidence. See Biao

14 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

15 applicant’s failure to corroborate his or her testimony may

16 bear on credibility, because the absence of corroboration in

17 general makes an applicant unable to rehabilitate testimony

18 that has already been called into question.”). The agency

19 did not err in declining to afford significant weight to

20 letters from Singh’s family members, fellow Mann Party

21 members, neighbor, and doctor because the family members were

6
 1 interested parties and none of the authors was available for

2 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332,

3 334 (2d Cir. 2013) (holding that weight of evidence is within

4 the agency’s discretion and deferring to agency’s decision to

5 afford little weight to spouse’s letter); see also In re H-

6 L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding

7 that unsworn letters from alien’s friends and family were

8 insufficient support for alien’s claims because they were

9 from interested witnesses not subject to cross-examination),

10 overruled on other grounds by Hui Lin Huang v. Holder, 677

11 F.3d 130 (2d Cir. 2012).

12 Accordingly, given Singh’s omission of the two years he

13 spent in Jordan from his asylum application and the

14 inconsistency between statements at his credible fear

15 interview (that he went to Jordan to work) and his testimony

16 (that he went there to escape threats), as well as the lack

17 of specific information about the alleged threats or reliable

18 corroboration of his claims, we defer to the agency’s adverse

19 credibility determination. See Xiu Xia Lin, 534 F.3d at 167;

20 see also Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

21 289, 295 (2d Cir. 2006) (holding that even a single

7
 1 inconsistency is sufficient to support an adverse credibility

2 determination if it is material and relates to “an example of

3 the very persecution from which” the applicant seeks relief).

4 The adverse credibility determination is dispositive of

5 asylum, withholding of removal, and CAT relief because all

6 three forms of relief were based on the same discredited

7 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–

8 57 (2d Cir. 2006).

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

8