18-2025(L) Singh v. Garland BIA Vomacka, IJ A205 587 142 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 5th day of August, two thousand twenty-one. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MANPREET SINGH, 14 Petitioner, 15 16 v. 18-2025 (L), 17 19-1257 (Con) 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Heidi J. Meyers, Esq. New York, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; John Hogan, Assistant 1 Director; Robbin K. Blaya, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of these petitions for review of
7 Board of Immigration Appeals (“BIA”) decisions, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petitions for review
9 are DENIED.
10 Petitioner Manpreet Singh, a native and citizen of India,
11 seeks review of a June 14, 2018, decision of the BIA affirming
12 a July 7, 2017, decision of an Immigration Judge (“IJ”)
13 denying asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”), and an April 9, 2019,
15 decision of the BIA denying his motion to reopen or
16 reconsider. In re Manpreet Singh, No. A205 587 142 (B.I.A.
17 June 14, 2018), aff’g No. A205 587 142 (Immig. Ct. N.Y. City
18 July 7, 2017), and No. A205 587 142 (B.I.A. Apr. 9, 2019).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We deny the petition as to the lead case because the
22 agency did not err in concluding that Singh failed to meet
23 his burden of proof. We have reviewed both the BIA’s and the
2 1 IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391,
2 394 (2d Cir. 2005).
3 Singh alleged past persecution in the form of threats
4 and one attack by members of a rival political party. An
5 applicant’s testimony may be sufficient to sustain his burden
6 of proof if it “is credible, is persuasive, and refers to
7 specific facts sufficient to demonstrate that the applicant
8 is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). “Considering
9 the totality of the circumstances, and all relevant factors,
10 a trier of fact may base a credibility determination on the
11 demeanor, candor, or responsiveness of the applicant . . . ,
12 the consistency between the applicant’s . . . written and
13 oral statements . . . , the internal consistency of each such
14 statement, [and] the consistency of such statements with
15 other evidence of record . . . without regard to whether an
16 inconsistency, inaccuracy, or falsehood goes to the heart of
17 the applicant’s claim, or any other relevant factor.” Id.
18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
19 credibility determination unless . . . it is plain that no
20 reasonable fact-finder could make such a[]. . . ruling.” Xiu
21 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
3 1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2 “In determining whether the applicant has met [his] burden of
3 proof, the trier of fact may weigh the credible testimony
4 along with other evidence of record. Where the trier of fact
5 determines that the applicant should provide evidence that
6 corroborates otherwise credible testimony, such evidence must
7 be provided unless the applicant does not have the evidence
8 and cannot reasonably obtain the evidence.” 8 U.S.C.
9 § 1158(b)(1)(B)(ii). A failure to corroborate also “may bear
10 on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.” Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
14 The agency reasonably relied on inconsistencies between
15 Singh’s credible fear interview, application, and testimony
16 regarding how many attackers there were and what, if anything,
17 they said to him during the sole incident of alleged harm.
18 See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
19 (2d Cir. 2006) (holding that “material inconsistency in an
20 aspect of [the] story that served as an example of the very
21 persecution from which [petitioner] sought asylum . . .
4 1 afforded substantial evidence to support the adverse
2 credibility finding” (internal quotation marks omitted));
3 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
4 (“[E]ven a single inconsistency might preclude an alien from
5 showing that an IJ was compelled to find him credible.
6 Multiple inconsistencies would so preclude even more
7 forcefully.”). The agency was not required to accept Singh’s
8 explanations that he was scared at his interview and forgot
9 that his attackers spoke to him. See Majidi v. Gonzales, 430
10 F.3d 77, 80–81 (2d Cir. 2005).
11 While the IJ also relied on less probative omissions, we
12 defer to the IJ’s reasonable interpretation that the added
13 details were Singh’s attempt to strengthen his claim. See
14 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
15 there are two permissible views of the evidence, the
16 factfinder’s choice between them cannot be clearly
17 erroneous.” (internal quotation marks and citation omitted));
18 Hong Fei Gao, 891 F.3d at 78 (“probative value of a witness’s
19 prior silence on particular facts depends on whether those
20 facts are ones the witness would have reasonably been expected
21 to disclose”).
5 1 The agency also reasonably found that Singh failed to
2 corroborate his attack or that his father was killed for
3 political reasons. The IJ did not abuse his discretion in
4 rejecting Singh’s late-filed evidence where the affidavits
5 were signed a month before the deadline, they contained errors
6 or incomplete information, and the country conditions
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18-2025(L) Singh v. Garland BIA Vomacka, IJ A205 587 142 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 5th day of August, two thousand twenty-one. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MANPREET SINGH, 14 Petitioner, 15 16 v. 18-2025 (L), 17 19-1257 (Con) 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Heidi J. Meyers, Esq. New York, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; John Hogan, Assistant 1 Director; Robbin K. Blaya, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of these petitions for review of
7 Board of Immigration Appeals (“BIA”) decisions, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petitions for review
9 are DENIED.
10 Petitioner Manpreet Singh, a native and citizen of India,
11 seeks review of a June 14, 2018, decision of the BIA affirming
12 a July 7, 2017, decision of an Immigration Judge (“IJ”)
13 denying asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”), and an April 9, 2019,
15 decision of the BIA denying his motion to reopen or
16 reconsider. In re Manpreet Singh, No. A205 587 142 (B.I.A.
17 June 14, 2018), aff’g No. A205 587 142 (Immig. Ct. N.Y. City
18 July 7, 2017), and No. A205 587 142 (B.I.A. Apr. 9, 2019).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We deny the petition as to the lead case because the
22 agency did not err in concluding that Singh failed to meet
23 his burden of proof. We have reviewed both the BIA’s and the
2 1 IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391,
2 394 (2d Cir. 2005).
3 Singh alleged past persecution in the form of threats
4 and one attack by members of a rival political party. An
5 applicant’s testimony may be sufficient to sustain his burden
6 of proof if it “is credible, is persuasive, and refers to
7 specific facts sufficient to demonstrate that the applicant
8 is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). “Considering
9 the totality of the circumstances, and all relevant factors,
10 a trier of fact may base a credibility determination on the
11 demeanor, candor, or responsiveness of the applicant . . . ,
12 the consistency between the applicant’s . . . written and
13 oral statements . . . , the internal consistency of each such
14 statement, [and] the consistency of such statements with
15 other evidence of record . . . without regard to whether an
16 inconsistency, inaccuracy, or falsehood goes to the heart of
17 the applicant’s claim, or any other relevant factor.” Id.
18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
19 credibility determination unless . . . it is plain that no
20 reasonable fact-finder could make such a[]. . . ruling.” Xiu
21 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
3 1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2 “In determining whether the applicant has met [his] burden of
3 proof, the trier of fact may weigh the credible testimony
4 along with other evidence of record. Where the trier of fact
5 determines that the applicant should provide evidence that
6 corroborates otherwise credible testimony, such evidence must
7 be provided unless the applicant does not have the evidence
8 and cannot reasonably obtain the evidence.” 8 U.S.C.
9 § 1158(b)(1)(B)(ii). A failure to corroborate also “may bear
10 on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.” Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
14 The agency reasonably relied on inconsistencies between
15 Singh’s credible fear interview, application, and testimony
16 regarding how many attackers there were and what, if anything,
17 they said to him during the sole incident of alleged harm.
18 See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
19 (2d Cir. 2006) (holding that “material inconsistency in an
20 aspect of [the] story that served as an example of the very
21 persecution from which [petitioner] sought asylum . . .
4 1 afforded substantial evidence to support the adverse
2 credibility finding” (internal quotation marks omitted));
3 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
4 (“[E]ven a single inconsistency might preclude an alien from
5 showing that an IJ was compelled to find him credible.
6 Multiple inconsistencies would so preclude even more
7 forcefully.”). The agency was not required to accept Singh’s
8 explanations that he was scared at his interview and forgot
9 that his attackers spoke to him. See Majidi v. Gonzales, 430
10 F.3d 77, 80–81 (2d Cir. 2005).
11 While the IJ also relied on less probative omissions, we
12 defer to the IJ’s reasonable interpretation that the added
13 details were Singh’s attempt to strengthen his claim. See
14 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
15 there are two permissible views of the evidence, the
16 factfinder’s choice between them cannot be clearly
17 erroneous.” (internal quotation marks and citation omitted));
18 Hong Fei Gao, 891 F.3d at 78 (“probative value of a witness’s
19 prior silence on particular facts depends on whether those
20 facts are ones the witness would have reasonably been expected
21 to disclose”).
5 1 The agency also reasonably found that Singh failed to
2 corroborate his attack or that his father was killed for
3 political reasons. The IJ did not abuse his discretion in
4 rejecting Singh’s late-filed evidence where the affidavits
5 were signed a month before the deadline, they contained errors
6 or incomplete information, and the country conditions
7 articles predated the deadline by at least one year. See
8 Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (holding
9 the IJ has broad discretion to set and enforce deadlines).
10 And the IJ considered many of the late-filed documents and
11 reasonably concluded that they did not corroborate Singh’s
12 claim. For example, his father’s death certificate did not
13 list a cause of death, his mother’s affidavit did not confirm
14 his political activities and was inconsistent about where his
15 attack occurred, and a letter from a neighbor included
16 placeholders for information to be filled in that undermined
17 the reliability of the document. See Y.C. v. Holder, 741
18 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
19 agency’s evaluation of the weight to be afforded an
20 applicant’s documentary evidence.”). Singh’s failure to meet
21 his burden of proof with credible testimony or corroboration
6 1 is dispositive of asylum, withholding of removal, and CAT
2 relief because all three claims were based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
4 Cir. 2006).
5 We find no abuse of discretion in the BIA’s denial of
6 Singh’s motion to reopen or reconsider. See Ali v. Gonzales,
7 448 F.3d 515, 517 (2d Cir. 2006). First, the BIA reasonably
8 rejected Singh’s claim that he suffered a due process
9 violation based on translation errors because he failed to
10 identify a particular error or articulate how such error
11 affected his case. See Guo Qi Wang v. Holder, 583 F.3d 86,
12 89 n.1 (2d Cir. 2009).
13 Second, Singh did not show the prejudice required to
14 state a claim of ineffective assistance of counsel. See
15 Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir. 2010). Singh
16 did not suffer prejudice from his counsel’s late filing of
17 evidence because the IJ assessed the contents of the late-
18 filed documents and considered their reliability and
19 probative value. Singh had no knowledge of the contents of
20 a letter counsel allegedly lost and thus could not show its
21 value to his case. And his argument that his counsel’s
7 1 actions undermined his credibility is unpersuasive given that
2 his inconsistencies were within his own statements and about
3 his own experiences. Accordingly, he did not meet his burden
4 to show “that the outcome of his removal proceedings would
5 have been any different” but for counsel’s actions.
6 Debeatham, 602 F.3d at 486.
7 Finally, Singh argues that, under Pereira v. Sessions,
8 138 S. Ct. 2105, 2113–20 (2018), the immigration court lacked
9 jurisdiction over his removal proceedings because his notice
10 to appear (“NTA”) did not include the date and time of his
11 initial hearing. In Pereira, the Supreme Court held that an
12 NTA that fails to designate the date of an initial hearing
13 does not trigger the stop-time rule ending the noncitizen’s
14 period of continuous presence for purposes of cancellation of
15 removal. 138 S. Ct. at 2113–20; see also Niz-Chavez v.
16 Garland, 141 S. Ct. 1474, 1480–86 (2021). Singh’s argument
17 to extend this holding is foreclosed by Banegas Gomez v. Barr,
18 922 F.3d 101, 110–12 (2d Cir. 2019), which holds that an NTA
19 that omits the date and time of the hearing is adequate to
20 vest jurisdiction in the immigration court if the noncitizen
21 was sent a subsequent hearing notice with the missing
8 1 information. Singh was served with notices of his hearings
2 and appeared at those hearings.
3 For the foregoing reasons, the petitions for review are
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court