Singh Padwal v. Sessions

Opinion

17-1200 Singh Padwal v. Sessions BIA

Loprest, IJ

A201 109 343

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 22nd day of June, two thousand eighteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 HARINDER PAL SINGH PADWAL, 14 Petitioner, 15 16 v. 17-1200 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Amy Nussbaum Gell, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Terri J. 27 Scadron, Assistant Director; Colin 28 J. Tucker, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC.

1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Harinder Pal Singh Padwal, a native and 6 citizen of India, seeks review of a March 30, 2017, decision 7 of the BIA affirming a June 28, 2016, decision of an 8 Immigration Judge (“IJ”) denying his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Harinder Pal Singh Padwal, 11 No. A201 109 343 (B.I.A. Mar. 30, 2017), aff’g No. A201 109 12 343 (Immig. Ct. N.Y. City June 28, 2016). We assume the 13 parties’ familiarity with the underlying facts and procedural 14 history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision as modified by the BIA, i.e., minus the 17 burden finding the BIA did not reach. See Xue Hong Yang v. 18 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The 19 applicable standards of review are well established. See 20 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 21 162, 165-66 (2d Cir. 2008).

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1 “Considering the totality of the circumstances, and all 2 relevant factors, a trier of fact may base a credibility 3 determination on the demeanor, candor, or responsiveness of 4 the applicant . . . , the consistency between the 5 applicant’s . . . written and oral statements . . . , the 6 internal consistency of each such statement, [and] the 7 consistency of such statements with other evidence of 8 record . . . without regard to whether an inconsistency, 9 inaccuracy, or falsehood goes to the heart of the applicant’s 10 claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia 11 Lin, 534 F.3d at 163-64. Substantial evidence supports the 12 agency’s determination that Padwal was not credible as to his 13 claim that police and Congress Party members attacked him on 14 three occasions in India on account of his membership in the 15 Shiromani Akali Dal (Amritsar) (“SAD(A)”) Party. 16 The agency reasonably relied in part on Padwal’s 17 demeanor, noting that his testimony about past harm was 18 vague even when he was asked for explicit details, and that 19 he was evasive and unresponsive at other times. See 20 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 21 77, 81 n.1 (2d Cir. 2005) (recognizing that particular 22 deference is given to the trier of fact’s assessment of

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1 demeanor); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d 2 Cir. 2003) (“Where an applicant gives very spare testimony, 3 . . . the IJ . . . may fairly wonder whether the testimony 4 is fabricated . . . [and] may wish to probe for incidental 5 details . . . .”), overruled in part on other grounds by 6 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 7 (2d Cir. 2007). The demeanor finding is supported by the 8 record, which reflects that Padwal was asked to provide an 9 exact description of the attacks he suffered, but never 10 could provide much detail. And there are numerous 11 instances of Padwal testifying evasively or unresponsively 12 to avoid answers that would damage his claim. 13 The demeanor finding and overall credibility 14 determination are bolstered by record inconsistencies. See 15 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 16 Cir. 2006). The agency reasonably relied on Padwal’s 17 inconsistent statements at his border interview, credible 18 fear interview, and hearing regarding whether police 19 detained and beat him in an attempt to locate one of his 20 friends or on account of his political activities. Padwal 21 also made inconsistent statements regarding his employment 22 in India and his ability to safely relocate in India.

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1 Padwal did not provide compelling explanations for these 2 inconsistencies. See Majidi, 430 F.3d at 80 (“A petitioner 3 must do more than offer a plausible explanation for his 4 inconsistent statements to secure relief; he must 5 demonstrate that a reasonable fact-finder would be 6 compelled to credit his testimony.” (internal quotation 7 marks omitted)). Furthermore, contrary to his contention, 8 the agency did not err in finding the records of his border 9 and credible fear interviews reliable. See Ming Zhang v. 10 Holder, 585 F.3d 715, 721-22 (2d Cir. 2009). 11 The agency also reasonably questioned the credibility of 12 Padwal’s claim given that his knowledge of the platform of 13 his political party changed between his credible fear 14 interview and his hearing. At his credible fear interview, 15 Padwal was aware that the party advocated for an independent 16 Sikh state, but when asked about the term “Khalistan,” which 17 is the name of that state, he had never heard of it. By the 18 time he testified at his hearing, he was aware of the term. 19 Although the agency may err in basing a credibility finding 20 on an applicant’s lack of doctrinal knowledge, there are 21 “instances in which the nature of an individual applicant’s 22 account would render his lack of a certain degree of doctrinal

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1 knowledge suspect and could therefore provide substantial 2 evidence in support of an adverse credibility finding.” 3 Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006). Because 4 formation of Khalistan is the primary platform of Padwal’s 5 political party and he claimed to have put up posters and 6 attended rallies for his party, the agency did not err in 7 questioning his credibility based on his failure to recognize 8 the name. See id. 9 Having questioned Padwal’s credibility, the agency 10 reasonably relied further on his failure to rehabilitate 11 his testimony with reliable corroborating evidence. “An 12 applicant’s failure to corroborate his or her testimony may 13 bear on credibility, because the absence of corroboration 14 in general makes an applicant unable to rehabilitate 15 testimony that has already been called into question.” 16 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 17 The agency reasonably found that Padwal’s country 18 conditions evidence did not corroborate his testimony that 19 Congress Party members targeted him and other members of 20 the SAD(A) party in an effort to convert Sikhs to Hinduism. 21 We find no error in the agency’s decision to afford limited 22 weight to certain documentary evidence that was not

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1 accompanied by certificates of translation, that was 2 unavailable in original after being stolen, or that was 3 prepared by authors who were not available for cross- 4 examination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 5 471 F.3d 315, 342 (2d Cir. 2006) (holding that 6 determination of the weight of evidence is largely a matter 7 of agency discretion); see also In re H-L-H- & Z-Y-Z-, 25 8 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that unsworn 9 letters from alien’s friends and family were insufficient 10 to provide substantial support for alien’s claims because 11 they were from interested witnesses not subject to cross- 12 examination), overruled on other grounds by Hui Lin Huang 13 v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). 14 Given Padwal’s demeanor, inconsistent statements, and 15 lack of corroboration, the agency’s adverse credibility 16 determination is supported by substantial evidence. See 17 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to Padwal’s 18 argument, the credibility determination was dispositive of 19 asylum, withholding of removal, and CAT relief because all 20 three claims were based on the same factual predicate. See 21 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

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1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of removal 3 that the Court previously granted in this petition is VACATED, 4 and any pending motion for a stay of removal in this petition 5 is DISMISSED as moot. Any pending request for oral argument 6 in this petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2) and Second Circuit Local Rule 8 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court