Singh v. Barr

16-1350 Singh v. Barr BIA Loprest, IJ A200 170 125 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 11th day of April, two thousand nineteen. — 5 — 6 PRESENT: 7 PIERRE N. LEVAL, 8 GERARD E. LYNCH, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 TALWINDER SINGH, 14 Petitioner, — 15 — 16 v. 16-1350 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ — 22 — 23 FOR PETITIONER: Karamvir Dahiya, Dahiya Law 24 Offices, LLC, New York, NY. — 25 — 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Sabatino F. Leo, Trial Attorney, * The Clerk of Court is directed to amend the case caption to conform to the above. 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Talwinder Singh, a native and citizen of 9 India, seeks review of a March 29, 2016 decision of the BIA 10 affirming a September 15, 2014 decision of an Immigration 11 Judge (“IJ”) denying his application for asylum, withholding 12 of removal, and relief under the Convention Against Torture 13 (“CAT”). In re Talwinder Singh, No. A200 170 125 (B.I.A. 14 Mar. 29 , 2016), aff’g No. A200 170 125 (Immig. Ct. N.Y. City 15 Sept. 15, 2014). We assume the parties’ familiarity with the 16 underlying facts and procedural history in this case. 17 Under the circumstances of this case, we have reviewed 18 the IJ’s decision as supplemented by the BIA. See Yan Chen 19 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable 20 standards of review are well established. See 8 U.S.C. 21 § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23, 27 (2d 22 Cir. 2018). — 2 — 1 Asylum, Withholding of Removal, and CAT Relief 2 “The testimony of the applicant may be sufficient to 3 sustain the applicant’s burden without corroboration, but 4 only if the applicant satisfies the trier of fact that the 5 applicant’s testimony is credible, is persuasive, and refers 6 to specific facts sufficient to demonstrate that the 7 applicant is a refugee.” 8 U.S.C. § 1158 (b)(1)(B)(ii); see 8 also Wei Sun, 883 F.3d at 28 . “In determining whether the 9 applicant has met [his] burden, the trier of fact may weigh 10 the credible testimony along with other evidence of record. 11 Where the trier of fact determines that the applicant should 12 provide evidence that corroborates otherwise credible 13 testimony, such evidence must be provided unless the 14 applicant does not have the evidence and cannot reasonably 15 obtain the evidence.” 8 U.S.C. § 1158 (b)(1)(B)(ii). 16 The IJ reasonably required evidence to corroborate 17 Singh’s testimony given that his credibility was questionable 18 and his testimony unpersuasive. See id.; see also Wei Sun, — 19 — 883 F.3d at 28 . For example, the record evidence conflicted 20 with Singh’s testimony that his father was detained and killed 21 for having been a member of the Akali Dal Mann Party. Singh 22 also made inconsistent statements regarding whether he — 3 — 1 communicates often with his family in India or avoids doing 2 so because of his continued fear of police. Further, his 3 testimony regarding his alleged arrests and detentions lacked 4 detail. 5 The IJ did not err in finding that Singh failed to 6 adequately corroborate his claims. Singh did not submit any 7 objective evidence that he was or remains a member of the 8 Akali Dal Mann Party, nor did he submit any evidence to 9 corroborate his testimony that he suffered lacerations on his 10 back from being beaten with a belt during one of his 11 detentions. The only evidence Singh submitted to corroborate 12 his arrests were affidavits from his mother and village 13 leader. Those affidavits, however, did not provide any 14 further details about his arrests. Further, the country 15 conditions evidence that he provided did not corroborate 16 Singh’s claim that police continue to target Sikh members of 17 the Akali Dal Mann Party. See, e.g., Jagtar Singh v. Holder, — 18 — 753 F.3d 826, 832-37 (9th Cir. 2014) (concluding that a 19 fundamental change in conditions in India had occurred since 20 the 1980s and early 1990s such that “individuals are unlikely 21 to be persecuted because of their involvement with Sikh 22 separatist groups [like the Akali Dal Mann Party.]”). — 4 — 1 For these reasons, the agency did not err in finding that 2 Singh failed to satisfy his burden of establishing past 3 persecution or a well-founded fear of persecution on account 4 of his political opinion. See 8 U.S.C. § 1158 (b)(1)(B)(ii); 5 see also Wei Sun, 883 F.3d at 28 . That finding is dispositive 6 of asylum, withholding of removal, and CAT relief because all 7 three claims were based on the same factual predicate. See 8 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 9 Accordingly, we do not reach Singh’s challenge to the agency’s 10 alternative basis for denying asylum—his failure to timely 11 file his application. See INS v. Bagamasbad, 429 U.S. 24 , 12 25 (1976) (“As a general rule courts and agencies are not 13 required to make findings on issues the decision of which is 14 unnecessary to the results they reach.”). We further note 15 that, on appeal, Singh has abandoned any challenge to the 16 BIA’s decision declining to remand for consideration of newly 17 submitted, but previously available evidence. We therefore do 18 not review that decision. See Yueqing Zhang v. Gonzales, 426 19 F.3d 540 , 541 n.1, 545 n.7 (2d Cir. 2005) (noting that the 20 Court will not consider issues and claims abandoned in a 21 petitioner’s brief). — 5 — 1 Due Process Claims 2 We do not consider Singh’s unexhausted claim that his 3 due process rights were violated at his hearing by the use of 4 a Punjabi translator who uses the Shahmukhi script, whereas 5 Singh speaks Punjabi but uses the Gurmukhi script. See Lin 6 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-24 (2d Cir. 7 2007) (concluding that exhaustion of administrative remedies 8 is a predicate of the Court’s subject matter jurisdiction, 9 while exhaustion of specific issues is mandatory). We note, 10 however, that the transcript reflects that Singh understood 11 the proceedings. 12 Singh next argues that the IJ violated due process by 13 declining to permit two proposed witnesses to testify at his 14 hearing. In the immigration context, “[t]o establish a 15 violation of due process, an alien must show that []he was 16 denied a full and fair opportunity to present h[is] claims or 17 that the IJ or BIA otherwise deprived h[im] of fundamental 18 fairness.” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 19 2007) (internal quotation marks omitted). “Parties claiming 20 denial of due process in immigration cases must, in order to 21 prevail, allege some cognizable prejudice fairly attributable 22 to the challenged process.” Garcia-Villeda v. Mukasey, 531 — 6 — — 1 — F.3d 141 , 149 (2d Cir. 2008) (internal quotation marks 2 omitted). Although a noncitizen has a right to “a reasonable 3 opportunity . . . to present evidence on [his] own behalf,” 4 8 U.S.C. § 1229a(b)(4)(B), “[d]ecisions regarding the 5 appropriate conduct of a hearing and the submission of 6 evidence are committed to the discretion of the immigration 7 judge[,]” Ahmed v. Holder, 624 F.3d 150, 156 (2d Cir. 2010) 8 (citing 8 C.F.R. § 1240.1 (c)). An IJ abuses his discretion 9 in setting and enforcing deadlines for the submission of 10 evidence when (1) his “decision rests on an error of law . . . 11 or a clearly erroneous factual finding”; or (2) his “decision— 12 though not necessarily the product of legal error or a clearly 13 erroneous factual finding—cannot be located within the range 14 of permissible decisions.” Dedji v. Mukasey, 525 F.3d 187 , 15 191-92 (2d Cir. 2008) (quoting Morgan v. Gonzales, 445 F.3d 16 549, 551-52 (2d Cir. 2006)). 17 The IJ did not abuse his discretion, much less violate 18 due process, in declining to permit Singh’s two proposed 19 witnesses to testify. The IJ acted within his discretion in 20 so doing because, despite having two years to prepare his 21 case, Singh did not submit a witness list before the deadline 22 set by the IJ or before the deadline provided in the — 7 — 1 Immigration Court Practice Manual. Manual, § 3.1(b)(ii)(A), 2 (d)(ii); see Dedji, 525 F.3d at 191-92 . Moreover, the 3 witnesses were caught listening to Singh’s testimony after 4 having been sequestered. The IJ thus provided Singh a full 5 and fair opportunity to present his witnesses, and he and his 6 witnesses squandered that opportunity. See Burger, 498 F.3d 7 at 134 . Nor has Singh established any prejudice resulting 8 from the IJ’s action: Singh has never identified the witnesses 9 by name, described their proposed testimony in any detail, or 10 submitted their affidavits. See Garcia-Villeda, 531 F.3d at 11 149; Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (“In 12 order . . . to show . . . actual prejudice, [a petitioner] 13 must make a prima facie showing that he would have been 14 eligible for the relief and that he could have made a strong 15 showing in support of his application.”). 16 For the foregoing reasons, the petition for review is 17 DENIED. 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe 20 Clerk of Court — 8 —