Singh v. Whitaker

17-1620 Singh v. Whitaker BIA Nelson, IJ A205 587 165 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 9th day of January, two thousand nineteen. — 5 — 6 PRESENT: 7 JOHN M. WALKER, JR., 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 GURNAM SINGH, 14 Petitioner, — 15 — 16 v. 17-1620 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ — 22 — 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. — 25 — 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Mary Jane 28 Candaux, Assistant Director; Remi 29 Da Rocha-Afodu, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, 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 Gurnam Singh, a native and citizen of India, 6 seeks review of an April 26, 2017, decision of the BIA 7 affirming a July 28, 2016, decision of an Immigration Judge 8 (“IJ”) denying Singh’s application for asylum, withholding of 9 removal, and relief under the Convention Against Torture 10 (“CAT”). In re Gurnam Singh, No. A 205 587 165 (B.I.A. Apr. 11 26, 2017), aff’g No. A 205 587 165 (Immig. Ct. N.Y. City July 12 28, 2016). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 We have considered both the IJ’s and the BIA’s opinions 15 “for the sake of completeness.” Wangchuck v. Dep’t of 16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 17 the adverse credibility determination under a substantial 18 evidence standard. See 8 U.S.C. § 1252 (b)(4)(B); Xiu Xia Lin 19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The 20 governing REAL ID Act credibility standard provides as 21 follows: 22 Considering the totality of the circumstances, and 23 all relevant factors, a trier of fact may base a 24 credibility determination on the demeanor, candor, — 2 — 1 or responsiveness of the applicant or witness, . . 2 . the consistency between the applicant’s or 3 witness’s written and oral statements . . . , the 4 internal consistency of each such statement, the 5 consistency of such statements with other evidence 6 of record . . . , and any inaccuracies or falsehoods 7 in such statements, . . . or any other relevant 8 factor. — 9 — — 10 — 8 U.S.C. § 1158 (b)(1)(B)(iii). “We defer . . . to an IJ’s 11 credibility determination unless . . . it is plain that no 12 reasonable fact-finder could make such an adverse credibility 13 ruling.” Xiu Xia Lin, 534 F.3d at 167 . The agency 14 reasonably relied on inconsistencies between Singh’s written 15 statement, corroborating evidence, and testimony, as well as 16 his demeanor and lack of reliable corroborating evidence, 17 which, considered together, provide substantial evidence for 18 the adverse credibility determination. 19 The agency reasonably relied on inconsistencies between 20 Singh’s testimony and his documentary evidence regarding 21 whether Singh was harmed by the police or government 22 authorities in India. See 8 U.S.C. § 1158 (b)(1)(B)(iii). 23 Affidavits from Singh’s wife and a village leader stated that 24 government agencies beat and tortured Singh, Spec. App. 34 25 n.2, while Singh testified that he was tortured only by 26 members of the Congress Party. Singh’s explanation created 27 an additional inconsistency: he stated that he was not — 3 — 1 tortured when he went to the police but that he was kept for 2 one day and then released. See Majidi v. Gonzales, 430 F.3d 3 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 4 a plausible explanation for his inconsistent statements to 5 secure relief; he must demonstrate that a reasonable fact6 finder would be compelled to credit his testimony.” (internal 7 quotation marks and citations omitted)). 8 Singh’s testimony was also inconsistent with his 9 written statement. He wrote that in June 2015, Congress 10 Party members went to his home where they threatened his 11 wife and assaulted his sons, but he testified that his 12 family was not at home when the members arrived, so the 13 members moved on to his brother’s house. Singh argues that 14 this discrepancy should not be considered because he was in 15 the United States at the time of the event. But the agency 16 reasonably relied on the discrepancy as Singh volunteered 17 information about the incident in a written statement 18 prepared only days before his hearing and then testified to 19 a “dramatically different” version of events. See Majidi, — 20 — 430 F.3d at 80 (determining that “dramatically different” 21 accounts of an incident was substantial evidence for an 22 adverse credibility determination). Given the obvious 23 nature of the inconsistency, the IJ was not required to — 4 — 1 press Singh for further explanation or call the 2 inconsistency to his attention. Cf. Ming Shi Xue v. BIA, — 3 — 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived 4 incongruities in an asylum applicant’s testimony are not 5 plainly obvious, an IJ cannot rely on them to support an 6 adverse credibility ruling without first identifying the 7 alleged inconsistencies for the applicant and giving the 8 applicant an opportunity to address them.”). 9 The agency also reasonably relied on another 10 inconsistency between Singh’s testimony and written 11 statement. In his written statement, Singh reported that 12 he was attacked by three individuals in December 2012, but 13 he testified on cross-examination that four individuals 14 attacked him. See 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia 15 Lin, 534 F.3d at 167 (“[A]n IJ may rely on any 16 inconsistency or omission in making an adverse credibility 17 determination as long as the ‘totality of the 18 circumstances’ establishes that an asylum applicant is not 19 credible.”). 20 The adverse credibility determination is bolstered by 21 the IJ’s description of Singh as evasive in responding to 22 questions while testifying. See 8 U.S.C. 23 § 1158(b)(1)(B)(iii). We grant particular deference to this — 5 — 1 finding, “in recognition of the fact that the IJ’s ability to 2 observe the witness’s demeanor places her in the best position 3 to evaluate whether apparent problems in the witness’s 4 testimony suggest a lack of credibility or, rather, can be 5 attributed to an innocent cause such as difficulty 6 understanding the question.” Jin Chen v. U.S. Dep’t of 7 Justice, 426 F.3d 104, 113 (2d Cir. 2005). The record 8 supports the IJ’s conclusion, as evidenced by Singh’s 9 nonresponsive answers to questions about his army service and 10 the injuries he allegedly sustained during an attack by the 11 Congress Party. 12 Finally, the agency reasonably concluded that Singh 13 failed to rehabilitate his credibility with reliable 14 corroborating evidence. See Biao Yang v. Gonzales, 496 15 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 16 corroborate his . . . testimony may bear on credibility, 17 because the absence of corroboration in general makes an 18 applicant unable to rehabilitate testimony that has already 19 been called into question”). As discussed previously, 20 affidavits from Singh’s wife and a village leader were 21 inconsistent with Singh’s testimony regarding whether he 22 was tortured by government officials. The reliability of 23 these affidavits and others was further undermined by their — 6 — 1 use of identical language despite allegedly independent 2 authorship. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 3 F.3d 517, 524 (2d Cir. 2007) (noting that our case law “has 4 firmly embraced the commonsensical notion that striking 5 similarities between affidavits are an indication that the 6 statements are ‘canned.’”). Singh’s testimony undermined 7 the reliability of an affidavit submitted on behalf of the 8 Mann Party because Singh initially testified that the 9 person who signed the letter was not a Mann Party member. 10 Nor did the agency err in giving diminished weight to a 11 medical certificate that was not authenticated and did not 12 indicate in what year Singh received treatment. See Y.C. 13 v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We 14 generally defer to the agency’s evaluation of the weight to 15 be afforded an applicant’s documentary evidence”). 16 Given the inconsistencies between Singh’s testimony, 17 proffered corroborating evidence, and written statement, 18 his evasiveness in answering questions, and the lack of 19 reliable corroborating evidence, the totality of the 20 circumstances supports the adverse credibility 21 determination. See Xiu Xia Lin, 534 F.3d at 167 . Because 22 Singh’s claims were all based on the same factual 23 predicate, the adverse credibility determination is — 7 — 1 dispositive of asylum, withholding of removal, and CAT 2 relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d 3 Cir. 2006) 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of removal 6 that the Court previously granted in this petition is VACATED, 7 and any pending motion for a stay of removal in this petition 8 is DISMISSED as moot. Any pending request for oral argument 9 in this petition is DENIED in accordance with Federal Rule of 10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 11 34.1(b). 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court — 15 — — 8 —