Singh v. Attorney General of the United States

346 F. App'x 850
Procedural entryThis page is a short order in Singh v. Attorney General of the United States. Read the opinion of the Court — 216 F. App'x 242
Court of Appeals for the Third Circuit·Decided September 25, 2009·No. No. 08-3667·Published

Opinion

OPINION

PER CURIAM.

Amardip Singh, a native and citizen of India, entered the United States without inspection at the Canadian border in March 1998. He was placed in removal proceedings under INA § 212(a)(6)(A)(i) in November 2005. Singh conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he had been persecuted in India because of his political beliefs and activities in the Sikh separatist movement as a member of the Shiromani Akali Dal (Akali Dal) party.

Singh’s hearing testimony differed from his asylum application regarding the number of attacks, the number of arrests, the date on which he received a letter-threat, and where he lived in India, among other things. Singh’s asylum application (1-589) [852]*852said that he was attacked once in the marketplace on August 8, 1997, and sustained injuries to his left leg and hand. (A.R. at 300). In addition to testifying to the August 8 attack at the hearing, however, Singh testified for the first time that members of the Deba Todha Party, an anti-Sikh party, attacked him and his father on the street on September 1, 1997, before he and his father were arrested that same day. (A.R. 133-35). Singh testified that, after both attacks in 1997, he sought medical treatment from a local doctor whose name and affiliation he no longer remembered. (A.R. 99; 105; 136). He said that his father tried to locate the doctor but was unsuccessful. (A.R. 100-101; 137).

Singh stated in his 1-589 statement that he was arrested twice but he gave no dates or details. (A.R. 300 & 304). In addition to testifying that he and his father were arrested on August 18 and September 1, 1997, (see A.R. 98-99; 136), he also testified that they were arrested and detained for two or three days in 1992, when he was ten years old, (see A.R. 97; 125-126). Singh explained that he did not include the 1992 arrest in his 1-589 statement because he was a child in 1992 and because he was not beaten. (A.R. at 126-27).

Although Singh had originally testified that both he and his father were members of the Akali Dal party, Singh admitted on cross-examination that he was not actually a member. (A.R. 94-95; 147). He testified that he and his father received a letter-threat on July 15, 1997, which differed from his 1-589 statement in which he said that the letter came on June 19, 1997. (A.R. 300; 105 & 124). Although he said in his 1-589 statement that his family moved to Bhada for safety reasons after the marketplace attack in August 1997, (see A.R. 304), he testified at the hearing that he and his family had lived in Bhada for six years, from 1992 through 1998, (see A.R. 122-123). He left Bhada to go to New Delhi, which he left for the United States in 1998. (A.R. 110-12). His older brother, who was not a member of the Akali Dal, lived in New Delhi with his family. (A.R. at 112-113). Singh’s parents remained in Punjab, where his father remained active in the Akali Dal party. (Id.). According to Singh, his father, with whom Singh is in touch on a weekly basis, has had no threats or any other problems since 1998.(M).

Singh submitted affidavits from his father, the family’s landlord in Bhada, and a family friend in Bhada, all of which were similar in content. (A.R. 307). Singh’s father attested, in pertinent part, that “the police want to implicate my son and me in false criminal cases and wanted to kill us in a false encounter that is why. (sic) I send my son to a foreign country i.e. USA in order to escape from the cruelties and unnecessary harassment of the police in March 1998.” (Id.). Singh’s father did not mention in his affidavit the 1997 attacks and arrests or Singh’s arrest as a ten-year old in 1992. Nor did Singh’s father recount in his affidavit what efforts he made to find the local doctor who treated Singh for his injuries in 1997.

The IJ denied Singh’s asylum application as time-barred.1 The IJ also denied withholding of removal and CAT relief, finding that Singh lacked credibility due to discrepancies and omissions in his testimony, his asylum application, and his father’s affidavit, recounted above.2 Citing docu[853]*853mentary evidence in the record, the IJ also found that Singh failed to show a reasonable fear of future persecution or torture. The IJ emphasized that Singh’s father, a member of the Akali Dal, and the rest of the family had experienced no threats or problems in the recent past. The BIA affirmed, finding no clear error in the IJ’s adverse credibility determination. The BIA also ruled that Singh failed to establish that it was more likely than not that he would be persecuted • for his political work or tortured if he was deported to India. Singh filed a timely petition for review.

We will deny the petition. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the final order of the BIA denying Singh’s request for withholding of removal and for CAT relief. When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 876 F.3d 215, 222 (3d Cir.2004). Whether the BIA applied the appropriate standard of review is a question of law, and is therefore subject to de novo review. See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004). We review the factual findings of the IJ, including adverse credibility findings, for substantial evidence. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003). The IJ’s adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). “In making a credibility determination, the IJ must provide ‘specific, cogent reasonsfs]’ why the applicant is not credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006) (citation omitted).

Singh’s primary claim is that the IJ erred in making an adverse credibility determination because the inconsistencies and omissions in his testimony did not go to the heart of his claim. The Government counters that Singh is subject to the credibility standard set forth in § 101(a)(3) of the REAL ID Act, which was enacted before Singh filed his asylum application. Under § 101(a)(3), the trier of fact may consider any inconsistency, inaccuracy or falsehood in an asylum applicant’s written or oral statements, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Gabuniya, 463 F.3d at 322 n. 7. We have not addressed the lawfulness of the new provision in a precedential opinion. We need not decide today whether the IJ’s credibility finding is proper under § 101(a)(3), however, because we conclude that the .credibility determination was proper under the more generous preREAL ID Act standard.

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Singh v. Attorney General of the United States, 346 F. App'x 850 (3d Cir. 2009).

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