Singh v. Attorney General of United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 09-4741
_____________

KARNAIL SINGH,
Petitioner
v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
________________

On Petition for Review from the Board of Immigration Appeals
Agency No. A072- 381-556
Immigration Judge: The Honorable Andrew A. Arthur
________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges

(Filed: November 10, 2011)
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OPINION
_______________________

Smith, Circuit Judge.

Karnail Singh is an Indian citizen who entered this country illegally on

December 5, 1993. In 1994, Singh petitioned for asylum, withholding of removal,

protection under the Convention Against Torture (CAT), and humanitarian asylum.

In 2005, Singh received a Notice to Appear charging him with being removable

1
under 8 U.S.C. § 1182(a)(6)(A)(i). At a September 2005 hearing, Singh conceded

removability, but indicated that he intended to renew his 1994 petition, seeking

relief on the basis that he had suffered persecution and torture on the basis of his

Sikh religion and his political activity advocating for an independent Sikh state.

After holding a hearing on Singh’s renewed petition, the Immigration Judge

(IJ) found Singh not credible due to substantial inconsistencies between Singh’s

testimony and other evidence in the record. The IJ alternatively found that even if

Singh’s testimony were credible, he could no longer have a well-founded fear of

persecution because circumstances in India had changed regarding persecution of

Sikhs. Finally, the IJ found that even if Singh’s testimony were credible, the

persecution that he suffered did not rise to the level of persecution necessary to

warrant humanitarian asylum. The IJ denied Singh’s petition. Singh appealed the

IJ’s decision to the Board of Immigration Appeals (BIA). On December 3, 2009,

the BIA affirmed the IJ’s decision. Singh now petitions for review, arguing,

among other things, that the BIA erred in upholding the IJ’s adverse credibility

determination.1 We will deny Singh’s petition.

Because the BIA adopted the IJ’s adverse credibility determination, we

review the IJ’s determination for substantial evidence. Tarrawally v. Ashcroft, 338

1
The IJ had jurisdiction over Singh’s petition under 8 U.S.C. §§ 1158, 1231(b).
The BIA had jurisdiction over Singh’s appeal under 8 C.F.R. § 1003.1(b). We
exercise jurisdiction under 8 U.S.C. § 1252(a).
2
F.3d 180, 184 (3d Cir. 2003). An IJ is in the best position to assess a petitioner’s

credibility—accordingly, “[w]e will defer to and uphold the IJ’s adverse credibility

determinations if they are ‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole . . . .’” Chen v. Gonzales, 434 F.3d

212, 216 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

“[A]n adverse credibility finding [can] be based on inconsistencies, but only if the

inconsistencies relate[] to facts at the heart of the claim, rather than to unimportant

details.” Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). 2

The IJ provided cogent, specific reasons for his finding of adverse

credibility. At the hearing, the IJ questioned Singh vigorously about various

discrepancies between Singh’s account of his prior persecution and other evidence

in the record. The IJ gave Singh an opportunity to explain the inconsistencies.

Unsatisfied with Singh’s responses, the IJ found that Singh was not credible, in a

comprehensive opinion citing numerous discrepancies between Singh’s testimony

and the evidentiary record.

The discrepancies cited by the IJ concern the very acts of persecution that

2
The REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302-23
(2005), changed the standard of review for adverse credibility findings for petitions
filed on or after May 11, 2005. Because Singh’s petition was originally filed in
1994, however, “our pre-REAL ID Act standard applies to evaluation of the
credibility determination. Consequently, only inconsistencies going to the heart of
a claim will be deemed to compromise [a petitioner’s] credibility.” Chukwu, 484
F.3d at 189.
3
Singh cites as the basis for his petition. For example, at the hearing Singh testified

that his father was killed by Indian police at a famous attack on a Sikh temple,

which in part motivated him to join a political group dedicated to forming a Sikh

state. Other evidence in the record, however, suggested that Singh’s father was not

involved in the attack mentioned by Singh, and that he went missing after the

attack. This inconsistency, like others cited by the IJ, concern the very events of

persecution that Singh claims as a basis for asylum, withholding of removal,

protection under CAT, and humanitarian asylum. These inconsistencies clearly go

to the heart of his claim. Chukwu, 484 F.3d at 189. As a result, the IJ’s adverse

credibility determination was supported by substantial evidence, and the BIA did

not err in adopting the IJ’s credibility determination.

Given the adverse credibility determination, which called into question

Singh’s testimonial evidence regarding his history of persecution, the BIA also did

not err in concluding that Singh failed to meet his burden of proof under all of the

relevant standards.3

3
Although each of the forms of relief that Singh requests has different
requirements, Singh’s testimony regarding his past persecution and torture is
critical for each form of relief he seeks. Given the adverse credibility
determination, the BIA did not err in concluding that Singh failed to meet his
burden of proof under each of the applicable standards. Because Singh failed to
meet his evidentiary burden, we need not reach the IJ’s alternative reasons for
denying Singh’s petition, concerning the finding of changed circumstances for
Sikhs in India and whether Singh’s alleged persecution qualifies him for
humanitarian asylum.
4
Accordingly, we will deny Singh’s petition for review.