15-2795-ag
Singh v. Sessions
BIA
Hom, IJ
A200 241 489
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
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 6th day of April, two thousand seventeen.
PRESENT: REENA RAGGI,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
VARLINDER SINGH,
Petitioner,
v. No. 15-2795-ag
JEFFERSON B. SESSIONS III, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
APPEARING FOR PETITIONER: AMY NUSSBAUM GELL, Gell & Gell New
York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B.
Sessions III is automatically substituted for former Attorney General Loretta E. Lynch as
Respondent.
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APPEARING FOR RESPONDENT: VIRGINIA LEE GORDON, Trial Attorney for
Benjamin C. Mizer, Principal Deputy Assistant
Attorney General (Anthony W. Norwood,
Senior Litigation Counsel, Hillel R. Smith, Trial
Attorney, on the brief), Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Varlinder Singh, a native and citizen of India, seeks review of the BIA’s
affirmance of an Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See In re Singh, No. A200 241 489
(B.I.A. Aug. 5, 2015), aff’g No. A200 241 489 (Immig. Ct. N.Y.C. July 15, 2014). Under
the circumstances of this case, we review the IJ’s decision as supplemented by that of the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). In so doing, we
assume the parties’ familiarity with the underlying facts and procedural history of this case,
which we reference only as necessary to explain our decision to deny the petition.
Singh seeks review of the agency’s decision affirming the IJ’s exclusion of
late-filed evidence and conclusion that, given Singh’s lack of credible testimony and the
absence of admissible documentary evidence, he could not meet his burden of proof as to
his well-founded fear of persecution.
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1. Evidentiary Ruling
We review the agency’s enforcement of filing deadlines for the submission of
evidence for abuse of discretion, see Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008),
which we will identify only if the decision “rests on an error of law (such as application of
the wrong legal principle) or a clearly erroneous factual finding” or otherwise “cannot be
located within the range of permissible decisions,” id. at 191–92 (internal quotation marks
omitted).
An IJ has broad discretion in setting and enforcing filing deadlines, see id. at 192,
which, pursuant to federal regulation, extends to “set[ting] and extend[ing] time limits for
the filing of applications and related documents and responses thereto,” 8 C.F.R.
§ 1003.31(c). Further, federal regulation states that “if an application or document is not
filed within the time set by the Immigration Judge, the opportunity to file that application
or document shall be deemed waived.” Id. Nevertheless, the IJ has discretion to accept a
late filing “where an alien has demonstrated good cause for the failure to timely file
documents and a likelihood of substantial prejudice from enforcement of the deadline.”
Dedji v. Mukasey, 525 F.3d at 192.
At the outset, we note that Singh did not challenge the evidentiary ruling before the
IJ or BIA. See Foster v. I.N.S., 376 F.3d 75, 77–78 (2d Cir. 2004) (stating that failure to
comply with exhaustion requirements in 8 U.S.C. § 1252(d) “constitutes a clear
jurisdictional bar” to court’s consideration of claim (internal quotation marks omitted)).
Thus, this claim is not properly exhausted and cannot be considered here. Indeed, neither
Singh nor his attorney lodged a contemporaneous objection to the IJ’s exclusion of his
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late-filed evidence, and his contentions before the BIA that the IJ failed to consider “the
entire record,” Certified Administrative Record (“CAR”) at 14–15, were too generalized to
preserve the exclusion claim on appeal. See Foster v. I.N.S., 376 F.3d at 77 (holding
“generalized” contention that removal was improper insufficient to exhaust specific
aggravated felony challenge).
2. Adverse Credibility Determination
Because the documentary evidence was admitted only for identification rather than
for substantive purposes, the agency’s credibility determination was made based only on
Singh’s testimony and his asylum application.
For asylum applications such as Singh’s, the agency may, “considering the totality
of the circumstances,” base an adverse credibility finding on an applicant’s inconsistent
statements, including internally inconsistent testimony. 8 U.S.C. § 1158(b)(1)(B)(iii); see
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 164–65 (2d Cir. 2008). We “defer . . . to an IJ’s
credibility determination unless, from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v.
Mukasey, 534 F.3d at 167.
Here, the IJ reasonably relied on several discrepancies in the record to conclude that
Singh was not credible. Singh offered internally inconsistent testimony regarding the year
he was attacked by Congress Party members for the second time, initially testifying that the
attack took place on March 12, 2012, but later saying that it took place either in 2012 or
2010. After his lawyer reminded him that he was in the United States in 2012, he again
changed his testimony, claiming that the attack occurred in 2011. This is a significant
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discrepancy regarding one of only two incidents of persecution Singh alleged in his
application, and the agency reasonably determined that it undermined Singh’s credibility.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295–96 (2d Cir. 2006).
Although Singh argues that he submitted medical documentation and affidavits confirming
the attack’s occurrence in 2011, this is the untimely evidence that was admitted only for
identification. In any event, the documentary evidence does not explain why Singh
himself gave three different dates for the attack, and, thus, does not rehabilitate his
inconsistent testimony or compel a finding of past persecution. See Ivanishvili v. U.S.
Dep’t of Justice, 433 F.3d 332, 337 (2d Cir. 2006) (observing that IJ’s or BIA’s factual
determinations will be upheld unless “reasonable factfinder would be compelled to
conclude to the contrary”).
Singh’s inconsistent testimony on cross-examination further supports this
conclusion. Singh directly contradicted himself regarding whether Congress Party
members came to his house after he left India and failed to explain this inconsistency
adequately when confronted with it. See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir.
2005). Insofar as Singh’s testimony was the only admissible evidence in support of his
alleged fear of future persecution, the inconsistencies therein were material.
Given these discrepancies pertaining to one of two incidents of alleged past harm
and to the basis for Singh’s continued fear of future harm, the totality of the circumstances
supports the agency’s adverse credibility ruling. See Xiu Xia Lin v. Mukasey, 534 F.3d at
167; Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d at 295–96. Because Singh’s
claims were all based on the same factual predicate, the agency’s adverse credibility
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determination is dispositive of asylum, withholding of removal, and CAT relief. See Paul
v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
We have considered Singh’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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