Rajwinder Singh v. Merrick Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 29, 2021
• Docket: 20-4173
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0303n.06

Case No. 20-4173

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 29, 2021 DEBORAH S. HUNT, Clerk ) RAJWINDER SINGH, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) OPINION )

BEFORE: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.

COLE, Circuit Judge. Rajwinder Singh petitions for review of a decision of the Board of

Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal.

The BIA found that Singh had failed to sustain his burden of proof on his claims. Because this

decision is supported by substantial evidence, we deny Singh’s petition.

I.

Rajwinder Singh is an Indian citizen and member of the Sikh religious community who

entered the United States without admission or inspection in January 2003. Singh applied for

asylum on multiple grounds, stating that he had been arrested, harassed, and beaten repeatedly by

police in his home district in the Indian state of Punjab. In June 2008, the Department of Homeland

Security filed a notice to appear against Singh, charging him as being removable under section

212(a)(6)(A)(i) of the Immigration and National Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an Case No. 20-4173, Singh v. Garland

alien present in the United States without having been admitted or paroled. In consecutive hearings

before the immigration court in 2009 and 2010, Singh conceded his removability and requested

asylum, withholding of removal under the INA and under the Convention Against Torture

(“CAT”), or, in the alternative, permission for voluntary departure.

At his March 2011 removal hearing, Singh specified through counsel that his asylum claim

rested on grounds of persecution for his political opinion and religion. Speaking in Punjabi

through an interpreter, Singh testified that he was a native of Punjab and made his living there as

a truck driver. In 1999, Singh joined a Sikh political party that advocated for the interests of Sikh

farmers. Singh stated that his affiliation with the party made him a target of abusive arrests,

detentions, and beatings by the local police on at least three occasions, which Singh detailed for

the Immigration Judge (“IJ”). According to Singh, none of these incidents resulted in formal

complaints or judicial proceedings in which he participated. After the last of these incidents in

2002, and faced with continued harassment and threats to his life by members of an opposing

political party, Singh decided to flee to the United States. He testified that he fears going back to

India because the police continue to seek him out, harass his family, and maintain an open file

against him.

In addition to his testimony, Singh submitted three pieces of noteworthy corroborative

evidence to support his requested relief. One was a letter dated July 20, 2010, from Singh’s “legal

consultant,” a local Punjabi attorney, who wrote that Singh’s “life and liberty [are] not safe here

in India.” (A.R. 000452.) The attorney letter then narrated the same three incidents about which

Singh had testified, with a few additional details. In closing, the letter advised Singh not to return

to India because criminal enforcement proceedings were commenced against him in late December

2002 and a warrant was issued for his arrest in May 2010. Attached to the letter was a copy of the

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purported arrest warrant, written in English. Singh submitted a second letter, dated February 22,

2011, apparently from Singh’s wife, and also written in English. She informed Singh that the

police continue to harass her and inquire about his whereabouts, and she advised him not to return

to India. The third piece of corroborative evidence was a 2003 affidavit from Singh’s father stating

that the police detained and beat Singh on three occasions.

In her March 2011 decision, the IJ concluded that Singh had failed to sustain his burden of

proof on all his claims. She found that Singh’s corroborative evidence was questionable and

insufficient to bolster his vague and sometimes evasive testimony. She specifically concluded that

the purported arrest warrant Singh submitted appeared to be fraudulent because it was created

solely for the purpose of his immigration proceedings. She additionally found that Singh had failed

to establish a well-founded fear of persecution based on his religion or political membership. The

IJ also denied on the merits his application for relief under the CAT.

Singh successfully appealed to the BIA, which remanded the case instructing the IJ to make

an express credibility finding and clearly state whether Singh carried his burden of proof through

testimony or documentary evidence. On remand in 2015, Singh provided the IJ with two updated

and moderately more detailed letters from his father and wife, but he offered no additional

testimony.

The IJ issued its second, written decision in September 2018, again denying Singh relief

on all three claims. This time, the decision expressly found Singh not credible, and then largely

reiterated the same criticisms it had leveled against his testimony and corroborative evidence in its

previous decision. The IJ rested her denial of asylum relief on her adverse credibility

determination alone and did not otherwise discuss the merits of Singh’s persecution claim. On

appeal a second time, the BIA affirmed the IJ’s denial of Singh’s asylum and withholding of

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removal claims. The BIA limited its written decision to repeating the IJ’s reasons why Singh’s

corroborative evidence was inadequate to sustain his burden of proof, reasons which the IJ had

framed against the backdrop finding that Singh’s testimony was vague, inconsistent, and evasive

at times. The BIA also found that Singh had waived his claim to relief under the CAT by failing

to argue it on appeal.

Singh timely petitioned this court to review the BIA’s decision. Before us, he argues that

substantial evidence did not support the IJ’s adverse credibility finding because the inconsistencies

the IJ identified in Singh’s statements were minor and the shortcomings of his corroborative

evidence did not outweigh his otherwise credible and consistent testimony.

II.

A. STANDARD AND SCOPE OF REVIEW

Where, as here, “the BIA reviews the immigration judge’s decision and issues a separate

opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s

decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).

To the extent the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. Id.

Questions of law we review de novo, but we give “substantial deference . . . to the BIA’s

interpretation of the INA and accompanying regulations.” Id. We review under the substantial-

evidence standard the BIA and IJ’s factual findings, id., including their assessments of the

applicant’s credibility and of the sufficiency of his corroborative evidence, Marikasi v. Lynch, 840

F.3d 281, 287 (6th Cir. 2016) (credibility determinations); see Dorosh v. Ashcroft, 398 F.3d 379,

383–84 (6th Cir. 2004) (adequacy and availability of corroboration). We will not reverse these

findings simply because we disagree with them. Khalili, 557 F.3d at 435. Rather, we reverse them

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only if “any reasonable adjudicator would be compelled to.” See id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

B. ASYLUM AND WITHHOLDING OF REMOVAL

1. Legal framework

To be eligible for asylum, the applicant must show that he “has suffered past persecution

on the basis of race, religion, nationality, social group, or political opinion” or that he “has a well-

founded fear of persecution on one of those same bases.” Cruz-Samayoa v. Holder, 607 F.3d 1145,

1150 (6th Cir. 2010) (quoting Kouljinski v. Keisler, 505 F.3d 534, 541 (6th Cir. 2007)); see

8 C.F.R. § 1208.13(b). Withholding of removal under the INA requires a similar but “more

demanding” showing, Marikasi, 840 F.3d at 292, namely, that the applicant establish a “clear

probability” of persecution based on one of those same protected grounds, Cruz-Samayoa, 607

F.3d at 1151 (quotation omitted).

Because Singh applied for asylum prior to 2005, we assess his credibility under standards

predating the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302. Marikasi, 840 F.3d at

287 n.1. An asylum claim cannot succeed if the agency does not find the applicant’s testimony

credible on points that go to the “heart” of his claim. See, e.g., Abdurakhmanov v. Holder, 735

F.3d 341, 345–46 (6th Cir. 2012). If found credible, his testimony alone may suffice to sustain his

burden of proof, without corroborative evidence, Marikasi, 840 F.3d at 288; see 8 C.F.R.

§ 208.13(a) (1997), provided that the testimony is also persuasive and detailed, see Matty v. INS,

No. 93-3172, 1994 U.S. App. LEXIS 8122, at *11 (6th Cir. Apr. 14, 1994) (per curiam); In re

Dass, 20 I. & N. Dec. 120, 124 (BIA 1989).

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2. Determination of adverse credibility

Substantial evidence supports the agency’s determination that Singh was not a credible

witness based on the testimony and the corroborative evidence he provided. Dispositive here is

the IJ’s finding that the purported arrest warrant Singh submitted in support of his claim was

“essentially fraudulent.” (A.R. 000066.) Singh testified that government agencies in his home

district operate and issue documents entirely in Punjabi. The arrest warrant he submitted to the IJ,

however, was written in English. When pressed on this discrepancy, Singh explained that the local

magistrate had issued the warrant to his family in English so that the American immigration court

could understand its contents. The IJ understandably found this implausible and concluded that

the warrant was created solely for these immigration proceedings. Moreover, at no point did Singh

clarify the precise nature and provenance of the suspect document, even on remand after the IJ had

questioned its authenticity. Though one could speculate as to some conceivable reason why this

arrest warrant might not be fraudulent, the record contains no such explanation and much less does

it compel us to conclude that the IJ erred in her assessment.

If anything, other components of the record only strengthen the IJ’s conclusion. Singh

submitted the warrant as part of a single exhibit with the letter from his purported attorney, who

claimed to have received information from Singh regarding the police abuse. The letter referenced

and relied on the arrest warrant, which Singh surmised the attorney might have helped procure.

But on cross-examination, Singh acknowledged that he did not know this attorney and had never

met him. Singh also testified that the letter did not accurately state the date of his departure from

India and concluded that the attorney must have received this erroneous information from his

family. In short, with regard to credibility, neither the letter nor the warrant convincingly

buttresses the other.

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As we held in Selami v. Gonzales, if left unexplained, a single fraudulent submission

supports an adverse credibility determination when the document goes to a key element of the

applicant’s asylum claim. See 423 F.3d 621, 625–26 (6th Cir. 2005). Here, the arrest warrant

directly supported Singh’s key contention that he had a well-founded fear of future persecution by

local police should he ever return to India. Though the IJ offered additional reasons why she found

Singh’s testimony vague, evasive, and inconsistent, we need not assess those here—the IJ’s

adverse credibility determination can rest on the fraudulent submission alone. See id. at 626; cf.

Abdurakhmanov, 735 F.3d at 349 (upholding an IJ’s adverse credibility determination on the basis

of a key inconsistency going to the heart of the applicant’s claims, despite several errors elsewhere

in the IJ’s credibility analysis).

Before us, Singh does not argue that the arrest warrant is in fact legitimate or that Selami

is inapplicable to his case. Rather, he requests that we set Selami aside and opt not to treat a single

piece of fraudulent evidence as dispositive. He encourages us instead to weigh any fraudulent

submission against the rest of the applicant’s credible testimony and corroborative evidence. We

are not free, however, to simply ignore binding precedent. Wright v. Spaulding, 939 F.3d 695, 700

(6th Cir. 2019). Selami applies here and it forecloses Singh’s petition for asylum relief.

Because Singh’s asylum claim is unavailing, his application for withholding of removal

necessarily fails as well. See Marikasi, 840 F.3d at 292.

III.

For the foregoing reasons we deny Singh’s petition for review of the BIA’s decision.

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