Raghwinder Singh v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2019
• Docket: 15-71306
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAGHWINDER SINGH, No. 15-71306

Petitioner, Agency No. A096-138-103

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 12, 2019** San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.

Petitioner Raghwinder Singh, a native and citizen of India, seeks review of

the Board of Immigration Appeals’ (“BIA”) final order, denying him asylum,

withholding of removal, and protection under the Convention Against Torture.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. Singh also appeals the BIA’s frivolousness determination under 8 U.S.C. §

1158(d)(6).

Where, as here, the BIA reviews the IJ’s decision for clear error and

provides a written decision beyond mere boilerplate, we “look to the IJ’s oral

decision as a guide to what lay behind the BIA’s conclusion” and review “the

reasons explicitly identified by the BIA, and then examine the reasoning

articulated in the IJ’s oral decision in support of those reasons.” Tekle v. Mukasey,

533 F.3d 1044, 1051 (9th Cir. 2008) (quoting Kozulin v. INS, 218 F.3d 1112, 1115

(9th Cir. 2000)).

We review questions of law de novo. Flores-De Solis v. INS, 796 F.2d 330,

333 (9th Cir. 1986). We review “the BIA’s findings of fact, including credibility

findings, for substantial evidence and must uphold the BIA’s finding unless the

evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d 915, 920

(9th Cir. 2006) (internal quotation marks omitted).

Because Singh filed his application in 2002, our pre-REAL-ID Act case law

applies. See Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006). Under that

law, “[m]inor inconsistencies that reveal nothing about an asylum applicant’s fear

for her safety are not an adequate basis for an adverse credibility finding.” Kaur v.

Ashcroft, 379 F.3d 876, 884 (9th Cir. 2004) (alterations omitted). However, in

Singh’s case, the BIA rested its adverse credibility determination on two admitted

2 lies: in his application and initial testimony, Singh intentionally omitted his first

trip to the United States and falsely attested that he used the alias Roshan Kumar.

An admitted lie about those matters strikes at the heart of an asylum claim

because it suggests that the petitioner is willing to lie in order to improve his

chances of receiving asylum in the United States. Singh explained that he omitted

his prior visit because he feared he would have to return to India if he mentioned

his previous trip. As the BIA noted, Singh’s prior entry into the United States also

speaks to whether Singh feared persecution in India. See Loho v. Mukasey, 531

F.3d 1016, 1017–18 (9th Cir. 2008)). Although lies told to escape petitioner’s

original country, “without more, is not a proper basis” for finding an alien not

credible, Kaur, 379 F.3d at 889, and although Singh testified that his first attorney

told him to lie, Singh continued to lie well into his United States immigration

proceedings, after he found new counsel who did not instruct Singh to lie.

Therefore, the IJ’s adverse credibility determination was supported by substantial

evidence. Without credible testimony, Singh failed to carry his burden of

establishing eligibility for asylum or withholding, and therefore the IJ did not err in

denying these forms of relief. Moreover, absent credible testimony, Singh also

failed to show that it is more likely than not that he would be tortured if he returned

to India, and so Singh’s CAT claim also fails. See Farah v. Ashcroft, 348 F.3d

1153, 1157 (9th Cir. 2003).

3 An alien found to have “knowingly made a frivolous application for asylum”

despite receiving notice of the consequences, becomes “permanently ineligible for

any benefits.” 8 U.S.C. § 1158(d)(6). The IJ must “make specific findings that the

applicant knowingly filed a frivolous application.” Ahir v. Mukasey, 527 F.3d 912,

917 (9th Cir. 2008). “[A]n asylum application may be deemed frivolous only if it

contains ‘deliberate fabrication’ . . . and the applicant has thus perpetrated a fraud

on the court.” Yan Liu v. Holder, 640 F.3d 918, 927 (9th Cir. 2011) (alterations

omitted). The fabrication must be a “material element” of the claim. Id. Here,

evidence supports the BIA’s determination that Singh filed a frivolous application:

by lying about his prior entry, Singh deliberately fabricated a material element of

his asylum claim. Moreover, Singh had been afforded sufficient opportunity to

explain discrepancies and failed to do so. Ahir, 527 F.3d at 919.

DENIED.