16-458
Singh v. Sessions
BIA
Vomacka, IJ
A200 239 747
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 16th day of November, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12 MALEK SINGH,
13 Petitioner,
14
15 v. 16-458
16 NAC
17 JEFFERSON B. SESSIONS III,
18 UNITED STATES ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
23 York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 C. Payne, Assistant Director; Liza
28 S. Murcia, Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review is
5 DENIED.
6 Petitioner Malek Singh, a native and citizen of India,
7 seeks review of a January 19, 2016, decision of the BIA affirming
8 an August 22, 2014, decision of an Immigration Judge (“IJ”)
9 denying Singh’s application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Malek Singh, No. A 200 239 747 (B.I.A. Jan. 19, 2016), aff’g
12 No. A 200 239 747 (Immig. Ct. N.Y. City Aug. 22, 2014). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed both
16 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
17 432 F.3d 391, 394 (2d Cir. 2005). The standards of review are
18 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 The agency may, “[c]onsidering the totality of the
21 circumstances, . . . base a credibility determination on the
2
1 demeanor, candor, or responsiveness of the applicant or
2 witness,” or on inconsistencies or omissions in an applicant’s
3 oral and written statements and other record evidence,
4 regardless of whether any such discrepancies “go[] to the heart
5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
6 Xia Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s
7 credibility determination unless . . . it is plain that no
8 reasonable fact-finder could make such an adverse credibility
9 ruling.” Xiu Xia Lin, 534 F.3d at 167. The adverse
10 credibility determination in the present case is supported by
11 substantial evidence.
12 The agency reasonably relied on multiple inconsistencies
13 in Singh’s statements regarding his level of participation in
14 the Indian National Lok Dal party (“Lok Dal”). He gave changing
15 statements about whether he was involved with protests, and
16 whether he was a member. See 8 U.S.C. § 1158(b)(1)(B)(iii);
17 Xiu Xia Lin, 534 F.3d at 166-67. The agency was not compelled
18 to accept Singh’s explanations that he did not remember the
19 protests at the time he wrote his application and that he was
20 scared during the credible fear interview. Majidi v. Gonzales,
21 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more
3
1 than offer a plausible explanation for his inconsistent
2 statements to secure relief; he must demonstrate that a
3 reasonable fact-finder would be compelled to credit his
4 testimony.”(quotation marks and citation omitted)).
5 The adverse credibility determination is bolstered by
6 inconsistencies in Singh’s statements about whether and when
7 he was warned about his political activity and his lack of
8 coherent responses to questions about the warnings. Li Hua Lin
9 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We
10 can be still more confident in our review of observations about
11 an applicant’s demeanor where, as here, they are supported by
12 specific examples of inconsistent testimony.”). And the
13 agency also reasonably relied on Singh’s evolving and often
14 contradictory explanations for why a letter from Lok Dal was
15 filed late because it reflected a lack of familiarity with his
16 own evidence. See Xiu Xia Lin, 534 F.3d at 167 (holding that
17 “an IJ may rely on any inconsistency . . . as long as the
18 ‘totality of the circumstances’ establishes that an asylum
19 applicant is not credible”).
20 Nor could Singh provide any explanation of an identical
21 error that appeared in his asylum application and two affidavits
4
1 allegedly independently written and prepared in India. See Mei
2 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.
3 2007) (“[S]triking similarities between affidavits are an
4 indication that the statements are ‘canned.’”). Singh’s
5 additional arguments were not properly exhausted and will not
6 be considered. His contentions that the IJ failed to develop
7 the record and gave too much weight to his credible fear
8 interview were not raised before the agency. See Foster v. INS,
9 376 F.3d 75, 78 (2d Cir. 2004) (requiring exhaustion of issues
10 before the agency).
11 Given the foregoing findings, substantial evidence
12 supports the adverse credibility determination. See Xiu Xia
13 Lin, 534 F.3d at 167; Xian Tuan Ye v. U.S. Dep’t of Justice,
14 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a material
15 inconsistency in an aspect of [an applicant]’s story that served
16 as an example of the very persecution from which he sought asylum
17 . . . afford[s] substantial evidence to support the adverse
18 credibility finding” (internal quotation marks omitted)).
19 Contrary to Singh’s argument, the adverse credibility
20 determination was dispositive of all relief because it called
21 into question his political activities and past harm, thus
5
1 infecting his allegation that the police refused to help him.
2 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“So
3 a single false document or a single instance of false testimony
4 may (if attributable to the petitioner) infect the balance of
5 the alien’s uncorroborated or unauthenticated evidence.”); see
6 also Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6