17-462 Sindh v. Barr BIA Poczter, IJ A206 443 904 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 30th day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 PARMINDER SINGH, 14 Petitioner, 15 16 v. 17-462 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Dalbir Singh, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Cindy S. 27 Ferrier, Assistant Director; 28 Andrew N. O’Malley, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation, United
1 According to the parties’ briefs, the Petitioner’s surname is “Singh” rather than “Sindh.” The Clerk of Court is therefore directed to amend the caption as above. 1 States Department of Justice, 2 Washington, DC. 3 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 Parminder Singh, a native and citizen of
9 India, seeks review of a January 19, 2017, decision of the
10 BIA affirming a July 7, 2016, decision of an Immigration Judge
11 (“IJ”) denying Singh’s application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Parminder Sindh, No. A 206 443 904 (B.I.A.
14 Jan. 19, 2017), aff’g No. A 206 443 904 (Immig. Ct. N.Y.C.
15 July 7, 2016). 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 both the IJ’s and the BIA’s decisions. Wangchuck v. Dep’t
19 of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
20 adverse credibility determinations under a substantial
21 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The
2 1 governing REAL ID Act credibility standard provides:
2 Considering the totality of the circumstances, and 3 all relevant factors, a trier of fact may base a 4 credibility determination on the demeanor, candor, 5 or responsiveness of the applicant or witness, the 6 inherent plausibility of the applicant’s or 7 witness’s account, the consistency between the 8 applicant’s or witness’s written and oral 9 statements[,] . . . the internal consistency of each 10 such statement, the consistency of such statements 11 with other evidence of record[,] . . . and any 12 inaccuracies or falsehoods in such statements, 13 without regard to whether an inconsistency, 14 inaccuracy, or falsehood goes to the heart of the 15 applicant’s claim, or any other relevant factor. 16 17 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
18 credibility determination unless . . . it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling.” Xiu Xia Lin, 534 F.3d at 167; see 8 U.S.C.
21 § 1252(b)(4)(B). As discussed below, substantial evidence
22 supports the agency’s determination that Singh was not
23 credible.
24 The agency reasonably relied on inconsistencies between
25 Sindh’s testimony and his supporting evidence in finding that
26 Singh was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii).
27 Singh’s testimony that he never reported any of the attacks
28 against him to the police contradicted his uncle’s affidavit,
3 1 which stated that he and Sindh went to the police station
2 together to report an August 2013 attack. And Singh’s
3 testimony that he and his uncle, but not his mother, spent
4 two months in hiding in Delhi contradicted Singh’s mother’s
5 affidavit, which reflected that she accompanied Singh to
6 Delhi.
7 The agency also reasonably relied on Singh’s uncle’s
8 omission of any reference to the two months he and Singh spent
9 living in hotels in Delhi as support for its adverse
10 credibility determination. The agency may rely on omissions
11 in a witness’s letter to support an adverse credibility
12 determination. Xiu Xia Lin, 534 F.3d at 167. Although an
13 applicant’s inability to explain a third party’s omission may
14 be less probative of credibility where the omission is not
15 inconsistent with the applicant’s account, when the omitted
16 “facts are ones that a credible [witness] would reasonably
17 have been expected to disclose under the relevant
18 circumstances,” the agency may rely on such an omission to
19 support an adverse credibility determination. Hong Fei Gao
20 v. Sessions, 891 F.3d 67, 77-79 (2d Cir. 2018). The agency
21 was permitted to rely on the fact that Singh’s uncle never 4 1 discussed the time Singh allegedly spent feeling persecution
2 in India because one would reasonable expect Singh’s uncle to
3 disclose such a substantial period of avoiding persecution.
4 Singh now argues that the agency should not have credited
5 the affidavits because his mother and uncle were interested
6 witnesses who were not available for cross- examination. As
7 the Government observes, Singh did not raise this argument
8 before the agency, and it is therefore precluded from our
9 review because it is an unexhausted claim. See Foster v.
10 INS, 376 F.3d 75, 77-78 (2d Cir. 2004) (requiring petitioners
11 to raise issue to the BIA to preserve them for judicial
12 review). In any event, the argument also fails on the merits
13 because the agency may rely on inconsistencies between an
14 applicant’s statements and “other evidence of record,”
15 8 U.S.C. § 1158(b)(1)(B)(iii), and the agency has broad
16 discretion in weighing the evidence, see Y.C. v. Holder, 741
17 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
18 agency’s evaluation of the weight to be afforded an
19 applicant’s documentary evidence.”). Moreover, Singh
20 submitted these affidavits as support for his application and
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17-462 Sindh v. Barr BIA Poczter, IJ A206 443 904 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 30th day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 PARMINDER SINGH, 14 Petitioner, 15 16 v. 17-462 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Dalbir Singh, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Cindy S. 27 Ferrier, Assistant Director; 28 Andrew N. O’Malley, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation, United
1 According to the parties’ briefs, the Petitioner’s surname is “Singh” rather than “Sindh.” The Clerk of Court is therefore directed to amend the caption as above. 1 States Department of Justice, 2 Washington, DC. 3 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 Parminder Singh, a native and citizen of
9 India, seeks review of a January 19, 2017, decision of the
10 BIA affirming a July 7, 2016, decision of an Immigration Judge
11 (“IJ”) denying Singh’s application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Parminder Sindh, No. A 206 443 904 (B.I.A.
14 Jan. 19, 2017), aff’g No. A 206 443 904 (Immig. Ct. N.Y.C.
15 July 7, 2016). 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 both the IJ’s and the BIA’s decisions. Wangchuck v. Dep’t
19 of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
20 adverse credibility determinations under a substantial
21 evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
22 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The
2 1 governing REAL ID Act credibility standard provides:
2 Considering the totality of the circumstances, and 3 all relevant factors, a trier of fact may base a 4 credibility determination on the demeanor, candor, 5 or responsiveness of the applicant or witness, the 6 inherent plausibility of the applicant’s or 7 witness’s account, the consistency between the 8 applicant’s or witness’s written and oral 9 statements[,] . . . the internal consistency of each 10 such statement, the consistency of such statements 11 with other evidence of record[,] . . . and any 12 inaccuracies or falsehoods in such statements, 13 without regard to whether an inconsistency, 14 inaccuracy, or falsehood goes to the heart of the 15 applicant’s claim, or any other relevant factor. 16 17 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
18 credibility determination unless . . . it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling.” Xiu Xia Lin, 534 F.3d at 167; see 8 U.S.C.
21 § 1252(b)(4)(B). As discussed below, substantial evidence
22 supports the agency’s determination that Singh was not
23 credible.
24 The agency reasonably relied on inconsistencies between
25 Sindh’s testimony and his supporting evidence in finding that
26 Singh was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii).
27 Singh’s testimony that he never reported any of the attacks
28 against him to the police contradicted his uncle’s affidavit,
3 1 which stated that he and Sindh went to the police station
2 together to report an August 2013 attack. And Singh’s
3 testimony that he and his uncle, but not his mother, spent
4 two months in hiding in Delhi contradicted Singh’s mother’s
5 affidavit, which reflected that she accompanied Singh to
6 Delhi.
7 The agency also reasonably relied on Singh’s uncle’s
8 omission of any reference to the two months he and Singh spent
9 living in hotels in Delhi as support for its adverse
10 credibility determination. The agency may rely on omissions
11 in a witness’s letter to support an adverse credibility
12 determination. Xiu Xia Lin, 534 F.3d at 167. Although an
13 applicant’s inability to explain a third party’s omission may
14 be less probative of credibility where the omission is not
15 inconsistent with the applicant’s account, when the omitted
16 “facts are ones that a credible [witness] would reasonably
17 have been expected to disclose under the relevant
18 circumstances,” the agency may rely on such an omission to
19 support an adverse credibility determination. Hong Fei Gao
20 v. Sessions, 891 F.3d 67, 77-79 (2d Cir. 2018). The agency
21 was permitted to rely on the fact that Singh’s uncle never 4 1 discussed the time Singh allegedly spent feeling persecution
2 in India because one would reasonable expect Singh’s uncle to
3 disclose such a substantial period of avoiding persecution.
4 Singh now argues that the agency should not have credited
5 the affidavits because his mother and uncle were interested
6 witnesses who were not available for cross- examination. As
7 the Government observes, Singh did not raise this argument
8 before the agency, and it is therefore precluded from our
9 review because it is an unexhausted claim. See Foster v.
10 INS, 376 F.3d 75, 77-78 (2d Cir. 2004) (requiring petitioners
11 to raise issue to the BIA to preserve them for judicial
12 review). In any event, the argument also fails on the merits
13 because the agency may rely on inconsistencies between an
14 applicant’s statements and “other evidence of record,”
15 8 U.S.C. § 1158(b)(1)(B)(iii), and the agency has broad
16 discretion in weighing the evidence, see Y.C. v. Holder, 741
17 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
18 agency’s evaluation of the weight to be afforded an
19 applicant’s documentary evidence.”). Moreover, Singh
20 submitted these affidavits as support for his application and
21 does not give any reason why they would be unreliable except 5 1 for his relatives’ relationship to him, which if anything,
2 suggests that they would try to support his asylum claim
3 rather than undermine it.
4 In finding Singh not credible, the agency also reasonably
5 relied on Sindh’s inability to provide details about his time
6 in Delhi when he was asked on cross examination how long he
7 stayed in Delhi, at how many hotels he stayed, the names of
8 the hotels, and the amount of time he spent at each hotel.
9 See Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2007)
10 (explaining that vague testimony may support an adverse
11 credibility determination if “government counsel or the IJ
12 first attempts to solicit more detail from the alien”).
13 Considered cumulatively, the inconsistencies, between
14 Singh’s statements and the supporting affidavits, Singh’s
15 inability to give details, and the lack of reliable
16 corroboration provide substantial evidence for the adverse
17 credibility ruling. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
18 Lin, 534 F.3d at 167. Because all of Singh’s claims were
19 based on the same factual predicate, the adverse credibility
20 determination is dispositive of asylum, withholding of
21 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 6 1 156-57 (2d Cir. 2006).
2 For the foregoing reasons, the petition for review is
3 DENIED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court