Charanjit Singh v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2020
• Docket: 20-10784
• Status: Unpublished

Opinion

Case: 20-10784 Date Filed: 09/24/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10784 Non-Argument Calendar ________________________

Agency No. A201-424-481

CHARANJIT SINGH,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 24, 2020)

Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM: Case: 20-10784 Date Filed: 09/24/2020 Page: 2 of 11

Charanjit Singh seeks review of the Board of Immigration Appeals’ final

order affirming the Immigration Judge’s (IJ) denial of his applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

Singh brings three claims. First, Singh argues that the IJ and Board erred in

finding that his testimony was not credible. Second, he argues that the Board erred

in affirming the IJ’s adverse credibility determination because the IJ did not apply

the procedural protections of Matter of R-K-K-, 26 I. & N. Dec. 658 (BIA 2015).

Third, Singh argues that his Fifth Amendment due process rights were violated by

the IJ and Board. After a careful review of the record, we deny Singh’s petition.

I.

Singh is a native and citizen of India. In November 2018, he left India and

traveled to Mexico. From there, Singh crossed into the United States at an

unknown location along the southern border—without an immigration visa or valid

entry document. He was immediately detained by the Department of Homeland

Security, and an asylum officer conducted a credible-fear interview.

A few weeks later, the Department served Singh with a Notice to Appear

(NTA). The NTA charged Singh with removability as (1) an immigrant not in

possession of valid travel documents and (2) an alien present in the United States

without having been admitted or paroled. INA § 212(a)(6)(A)(i)(I), 8 U.S.C. §

1182(a)(7)(A)(i)(I); INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). He

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admitted the allegations and was found to be removable as charged. He also filed

applications for asylum, withholding of removal, and CAT relief.

At his August 2019 merits hearing before the IJ, Singh testified that he was a

member of the Shiromani Akali Dal Party—a prominent Sikh political

organization. He also testified about two encounters he had with members of the

Congress Party. The first was a July 2018 attack by five Congress Party members.

He claimed they beat him and told him to switch parties. As for the second, Singh

testified that in September 2018 he was attacked again—and even sustained spinal

injuries. He also stated that he was knocked unconscious and spent 20 days in the

hospital, where he got stitches in both his head and arm.

After finding that Singh’s testimony was inconsistent, nonresponsive,

confusing, and implausible, the IJ made an adverse credibility determination. And

because Singh presented little other evidence to support his applications, the IJ

denied them. On appeal, the Board determined that the IJ’s adverse credibility

determination was not clearly erroneous, and dismissed Singh’s appeal. Singh then

filed this petition for review.

II.

When the Board issues a decision that does not expressly adopt the IJ’s

decision, we review only the Board’s decision as the final agency judgment.

Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). We will,

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however, review the IJ’s decision to the extent that the Board adopted its

reasoning. Id.

III.

Singh argues that the IJ and Board erred in finding that his testimony was

not credible. We review credibility determinations under the substantial-evidence

standard. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006). The

trier of fact must determine credibility; we may not substitute our judgment for

theirs. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). The

mere fact that the record may support a contrary conclusion is not enough to justify

a reversal of the administrative findings. Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc). Indeed, we can reverse the findings of the IJ or Board

“only when the record compels a reversal.” Id.

To qualify for asylum, an applicant has the burden of proving that he meets

the statutory definition of a refugee. Specifically, an applicant must show that he

was persecuted in the past or has a well-founded fear of future persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

The asylum applicant must establish eligibility for asylum by offering

“credible, direct, and specific evidence in the record.” Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005). An applicant’s credible testimony alone

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may satisfy these factors. D-Muhumed, 388 F.3d at 818–19. But an adverse

credibility determination can be sufficient to deny an application. See Chen, 463

F.3d at 1231. Credibility determinations may be based on the totality of the

circumstances, including: (1) the demeanor, candor, and responsiveness of the

applicant; (2) the inherent plausibility of the applicant’s account; (3) the

consistency between the applicant’s written and oral statements; (4) the internal

consistency of each statement; and (5) the consistency of the applicant’s statements

with other record evidence, including country reports. INA § 208(b)(1)(B)(iii), 8

U.S.C. § 1158(b)(1)(B)(iii).

To make an adverse credibility determination, the IJ or Board must offer

specific, cogent reasons. Chen, 463 F.3d at 1231. Once the IJ or Board has done

so, the “burden then shifts to the alien to show” that the “credibility decision was

not supported by specific, cogent reasons or was not based on substantial

evidence.” Id. (quotation marks omitted). Even one inconsistency or omission

may justify an adverse credibility determination. Xia v. U.S. Att’y Gen., 608 F.3d

1233, 1240 (11th Cir. 2010). Moreover, the IJ and Board may consider

inaccuracies and falsehoods in the applicant’s evidence regardless of whether they

go to the heart of their claim. Chen, 463 F.3d at 1233.

Here, the record does not compel reversal of the adverse credibility

determination. The Board provided specific, cogent reasons for its finding. First,

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the Board found that Singh’s testimony was not credible because of his

inconsistent description of the attacks and omission of salient facts. At his merits

hearing, Singh stated that he was cut several times, beaten with a wooden baton,

and knocked unconscious during the second attack. Singh further testified that the

attack resulted in spinal injuries, a 20-day hospital stay, and 10 to 12 stitches in

both his head and arm. But his asylum application and accompanying statement

made no mention of that. There, he claimed only that he was “beat[en]” and

“injured,” and that he was treated at a “private hospital.” And in his credible-fear

interview, Singh said only that he was “subjected” to “beatings,” and that the

“hospital refused to admit [him].” When questioned, he attempted to explain these

discrepancies as being the result of a “kind of memory loss.” But at his credible-

fear interview, Singh affirmed that he had no mental or medical conditions or

concerns that would affect the interview. The Board found that Singh’s

explanation therefore “undermine[d] his credibility.” Singh does not point to any

evidence in the record that compels reversal of that finding. See id. (even a tenable

explanation for inconsistencies does not compel reversal).

Second, the record does not compel reversal of the Board’s determination

that Singh’s testimony was not credible because it was nonresponsive and

confusing. As the Board noted, on several occasions during Singh’s merits

hearing, the IJ and interpreter observed that Singh was mumbling and hard to

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understand. The IJ observed that this “only happened when he was being cross-

examined” with some of the “tougher questions.” For instance, when initially

asked whether he paid a smuggler to leave India, Singh “mumbled” and the

interpreter “could not understand a single word he said.” When pressed, Singh

admitted that his family paid a “travel agency” about $15,000 for his trip. On these

facts, the record evidence does not compel reversal.

Third, the record likewise does not compel reversal of the Board’s finding

that portions of Singh’s testimony were implausible. At various points, Singh

stated that he “jumped the wall” at the United States–Mexico border. He later

suggested that he used a ladder to scale it. But at the same time, Singh claimed

that the second attack left him with spinal injuries that made it “hard for [him] to

move [his] neck around.” The Board found Singh’s testimony that he scaled the

border wall with those spinal injuries implausible and not “adequately

reconcile[d].” To be sure, the IJ and Board cannot rest an adverse credibility

determination “solely on speculation and conjecture” rather than evidence. Tang v.

U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th Cir. 2009) (the IJ’s conclusion that

petitioner’s mother “would not ‘flagrantly’ violate Chinese law to help her

daughter flee amounts to little more than speculation”). But when, as here, the IJ

and Board rely on relevant and probative evidence in support of the implausibility

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finding—Singh’s own testimony about his spinal injuries—the record evidence

does not compel reversal.

Substantial evidence supports denying Singh’s asylum application. Given

the adverse credibility determination, Singh has not provided credible, direct, and

specific evidence in favor of asylum. The only other evidence Singh offered was

filed late. The IJ admitted just one of those documents—an affidavit from the

chief of Singh’s village. But he was not a witness to the attacks, and the affidavit

merely regurgitated Singh’s own account. Furthermore, because Singh cannot

meet his burden for proving asylum eligibility, he is also not able to meet the more

stringent standards required for withholding of removal or CAT relief. See

Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007).

IV.

Singh next claims the Board erred by not requiring the IJ apply certain

procedural protections under Matter of R-K-K-. We review the Board’s legal

determinations de novo. D-Muhumed, 388 F.3d at 817. In Matter of R-K-K-, the

Board adopted a three-part framework to apply when relying on an application’s

similarities with other applications to make credibility determinations. 26 I. & N.

Dec. at 661. Matter of R-K-K- requires: (1) that the applicant be given

“meaningful notice of the similarities that are considered to be significant”; (2)

that the applicant be given “a reasonable opportunity to explain the similarities”;

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and (3) the IJ should consider the “totality of the circumstances in making a

credibility determination.” Id.

The Board did not err by declining to require that the IJ apply Matter of R-K-

K-. Here, the IJ did not rely on the similarities when making his adverse credibility

determination. He referenced the similarities only in passing, in a footnote.

What’s more, the similarities were not mentioned in the section of the IJ’s opinion

where he made the adverse credibility determination. And as discussed above, the

IJ and Board offered several cogent, specific reasons for that determination.

Namely, Singh’s testimony was inconsistent, nonresponsive, confusing, and

implausible. Because the IJ did not rely on the similarities to make his adverse

credibility determination, Matter of R-K-K-’s procedural protections do not apply.

Thus, the Board did not err.

V.

Finally, Singh argues that his Fifth Amendment due process rights were

violated. We review constitutional due process claims de novo. Ali v. U.S. Att’y

Gen., 443 F.3d 804, 808 (11th Cir. 2006). To establish a due process violation,

Singh must show that he “was deprived of liberty without due process of law, and

that the error caused him substantial prejudice.” Garcia v. Att’y Gen. of U.S., 329

F.3d 1217, 1222 (11th Cir. 2003) (citation omitted). To demonstrate substantial

prejudice, Singh must “show the alleged due process violation would have affected

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the outcome of the case.” Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1285 (11th Cir.

2009). If the “result of [the] proceedings would have been the same” absent the

procedural violation, there is no substantial prejudice. Patel v. U.S. Att’y Gen., 334

F.3d 1259, 1263 (11th Cir. 2003).

As an initial matter, the government argues that Singh failed to exhaust his

due process claim because he did not articulate one in his brief to the Board. We

disagree. To exhaust a claim, Singh need only have raised the “core issue” below.

See Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir.

2008). And while Singh did not explicitly argue to the Board that the IJ violated

his due process rights, he did contend that the IJ’s credibility determination was

based on “improper prejudgment” of his case and did not “fairly and impartially

assess” his credibility. Hence, Singh raised the core issue below, and we may

evaluate the merits of his claim.

Singh makes two due process arguments. First, Singh argues that the IJ

“prejudged his claim based on perceived similarities” between his application and

applications from other proceedings. But, again, there is no indication that the IJ

relied on the perceived similarities in determining Singh’s credibility. So Singh

cannot have been substantially prejudiced by it.

Second, Singh argues that the IJ was “not acting as a neutral arbiter” because

he disallowed late-filed evidence but selectively admitted one such piece of

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evidence—the letter from the chief of Singh’s village. But Singh “does not have a

constitutionally protected liberty interest in the admission of evidence after the

court-ordered deadline.” Tang, 578 F.3d at 1276. And the IJ’s “decision to

exclude evidence offered for submission after a court-ordered filing deadline is

discretionary.” Id. In any event, there is no indication that it would have “affected

the outcome of the case.” Avila, 560 F.3d at 1285. Accordingly, Singh’s due

process rights were not violated.

VI.

After a careful review of the record, we DENY Singh’s petition.