Singh v. Garland

Opinion

19-768 Singh v. Garland BIA Schoppert, IJ A205 915 171 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of June, two thousand twenty-one.

PRESENT: GERARD E. LYNCH, STEVEN J. MENASHI, Circuit Judges.* _____________________________________

SATWINDER SINGH, Petitioner,

v. 19-768 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

* Judge Robert A. Katzmann, originally a member of the panel, died on June 9, 2021. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). FOR PETITIONER: Genet Getachew, Esq., Law Office of Genet Getachew, Brooklyn, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; David J. Schor, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Satwinder Singh, a native and citizen of

India, seeks review of a February 27, 2019, decision of the

BIA affirming a December 1, 2017, decision of an Immigration

Judge (“IJ”) denying asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). In

re Satwinder Singh, No. A 205 915 171 (B.I.A. Feb. 27, 2019),

aff’g No. A 205 915 171 (Immig. Ct. N.Y.C. Dec. 1, 2017). We

assume the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

Cir. 2005). The standards of review are well established.

2 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891

F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility

determination under substantial evidence standard).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on . . . the consistency between the

applicant’s or witness’s written and oral statements . . . ,

the internal consistency of each such statement, the

consistency of such statements with other evidence of

record . . . without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s

claim, or any other relevant factor.” 8 U.S.C.

§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d

at 76.

Here, substantial evidence supports the IJ’s adverse

credibility determination. Singh alleged past persecution and

a fear of future persecution from members of the Badal Party

3 and the police on account of his support for a rival political

party. The agency reasonably concluded that he was not

credible based on discrepancies between his documentary

evidence and testimony, as well as an internal inconsistency

within his testimony. The agency also reasonably concluded

that Singh did not adequately rehabilitate his account

through reliable corroboration.

First, the agency reasonably relied on a discrepancy as

to whether police or members of the Badal Party visited

Singh’s family after he left India. See 8 U.S.C.

§ 1158(b)(1)(B)(iii). Singh first testified that he had not

been threatened since leaving India and that neither police

nor Badal Party members knew that he was in the United States,

but Singh later testified that his father told him that police

and Badal Party members had visited his family in India

several times to ask about Singh’s whereabouts. Neither

Singh’s written statement nor the letters from his parents

mention any visits. The agency did not err in considering

this omission because “a credible petitioner would reasonably

have been expected to disclose” such facts when pursuing a

claim that he feared returning to India. See Hong Fei Gao,

4 891 F.3d at 79. The agency was not required to credit Singh’s

explanations that he did not think the information was needed

and did not know why his parents had not mentioned the visits.

See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

The agency also reasonably relied on an inconsistency

within Singh’s testimony regarding his medical treatment in

India. Singh alleged that he received medical treatment

after two police beatings, but his testimony was internally

inconsistent about where that treatment occurred. See Likai

Gao v. Barr, 968 F.3d 137, 145 (2d Cir. 2020) (“[E]ven a

single inconsistency might preclude an alien from showing

that an IJ was compelled to find him credible. Multiple

inconsistencies would so preclude even more forcefully.”).

The agency also noted that Singh’s testimony about what

treatment he received, and whether he was treated once or

twice, was inconsistent with a letter he submitted from the

treating doctor. Singh argues on appeal that the IJ violated

his due process rights by considering the letter from the

treating doctor, since Singh had sought to withdraw that

letter at the outset of his hearing. But we need not decide

whether Singh’s due process challenge has merit because, as

5 the BIA held, even the earlier inconsistencies unrelated to

the contents of the doctor’s letter are sufficient to support

the agency’s adverse credibility determination. See Xiu Xia

Lin, 534 F.3d at 167.

In addition, the agency reasonably found that Singh did

not provide reliable corroborating evidence. See 8 U.S.C.

§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that

the applicant should provide evidence that corroborates

otherwise credible testimony, such evidence must be provided

unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.”); Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007) (“[T]he absence of corroboration

in general makes an applicant unable to rehabilitate

testimony that has already been called into question.”). The

agency reasonably declined to credit letters from Singh’s

friends and family in India because the authors were not

available for cross-examination. See Y.C. v. Holder, 741

F.3d 324, 332, 334 (2d Cir. 2013); see also In re H-L-H- & Z-

Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters

from friends and family insufficient for corroboration

because these letters were from interested witnesses not

6 subject to cross-examination), overruled on other grounds by

Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).

Moreover, the IJ reasonably gave Singh’s parent’s letters

minimal weight because they used nearly identical language.

See Mei Chai Ye v. U.S. Dep’t of Just., 489 F.3d 517, 524 (2d

Cir. 2007) (“[S]triking similarities between affidavits are

an indication that the statements are ‘canned.’”).

Given the discrepancies and lack of reliable

corroboration, the adverse credibility determination is

supported by substantial evidence. See Xiu Xia Lin, 534 F.3d

at 165–66. That determination is dispositive of asylum,

withholding of removal, and CAT relief because all three

claims are based on the same factual predicate. See Paul v.

Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court