20-574 Singh v. Garland BIA Conroy, IJ A205 935 367 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 14th day of March, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD C. WESLEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 MANPREET SINGH, 14 Petitioner, 15 16 v. 20-574 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Esq., Richmond 24 Hill, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Erica 28 B. Miles, Senior Litigation 1 Counsel; Jaclyn E. Shea, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Manpreet Singh, a native and citizen of India,
11 seeks review of a January 21, 2020, decision of the BIA
12 affirming a March 9, 2018, decision of an Immigration Judge
13 (“IJ”), denying his application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Manpreet Singh, No. A205 935 367 (B.I.A. Jan.
16 21, 2020), aff’g No. A205 935 367 (Immig. Ct. N.Y. City Mar.
17 9, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 I. Credibility and Corroboration
20 Under the circumstances, we have reviewed the decision
21 of the IJ as supplemented by the BIA. See Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review adverse
23 credibility determinations for substantial evidence. See
24 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 2 1 67, 76 (2d Cir. 2018). “Considering the totality of the
2 circumstances, and all relevant factors, a trier of fact may
3 base a credibility determination on the demeanor, candor, or
4 responsiveness of the applicant or witness, . . . the
5 consistency between the applicant’s or witness’s written and
6 oral statements . . . , the internal consistency of each such
7 statement, [and] the consistency of such statements with
8 other evidence of record . . . without regard to whether an
9 inconsistency, inaccuracy, or falsehood goes to the heart of
10 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
11 defer . . . to an IJ’s credibility determination unless, from
12 the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse credibility
14 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
15 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
16 evidence supports the adverse credibility determination.
17 The agency reasonably relied on inconsistencies between
18 Singh’s testimony and other evidence. See 8 U.S.C.
19 § 1158(b)(1)(B)(iii). Singh gave contradictory statements
20 about his political activities, providing in his affidavit
21 that he distributed flyers door-to-door, but explicitly
3 1 denying that he did so when testifying. Singh also made
2 inconsistent statements about how long he hid in Delhi after
3 his first alleged attack by Congress Party members, stating
4 in his affidavit that he returned to his village after a few
5 months, but testifying that he remained in Delhi for three
6 years. He provided the specific day of a month that he was
7 released from the hospital, but not the month or year that he
8 was hospitalized, and the day he gave was inconsistent with
9 the date in his affidavit. The IJ was not required to credit
10 Singh’s explanation that he forgot the dates and was too
11 “uneducated” to recall them, particularly as he provided
12 specific dates when preparing his application.
13 The agency also reasonably concluded that Singh’s
14 corroborating evidence did not rehabilitate his credibility.
15 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
16 (an alien’s “failure to corroborate his . . . testimony may
17 bear on credibility, because the absence of corroboration in
18 general makes an applicant unable to rehabilitate testimony
19 that has already been called into question.” The agency did
20 not err in declining to give weight to Singh’s documentary
21 evidence. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
4 1 2013) (“We defer to the agency’s determination of the weight
2 afforded to an alien’s documentary evidence.”). An affidavit
3 from Singh’s father was prepared by an individual who
4 simultaneously translated Singh’s father’s oral statement
5 from Punjabi to English and transcribed the statement in
6 English. The IJ did not err in declining to credit that
7 document because there was no evidence to confirm that the
8 translation was accurate. See Shunfu Li v. Mukasey, 529 F.3d
9 141, 149 (2d Cir. 2008) (holding that “we afford IJs
10 considerable flexibility in determining the authenticity of
11 . . . documents from the totality of the evidence”); cf.
12 8 C.F.R. § 1003.33 (“[A]ny foreign language document offered
13 by a party in a proceeding [in immigration court] shall be
14 accompanied by an English language translation, as well as by
15 a certification signed by the translator.”). Contrary to
16 Singh’s argument here, the IJ asked counsel to explain the
17 lack of certification. Singh also contends that the IJ
18 ignored country conditions evidence, but there is nothing in
19 the record to suggest that the IJ ignored material evidence
20 given the IJ’s statement that he considered all of the
21 documents in the record and his acknowledgment of political
5 1 tensions in India. See Zhi Yun Gao v. Mukasey, 508 F.3d 86,
2 87 (2d Cir. 2007) (agencies are not required to “expressly
3 parse or refute on the record each individual argument or
4 piece of evidence offered by the petitioner” (quotation marks
5 omitted)).
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20-574 Singh v. Garland BIA Conroy, IJ A205 935 367 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 14th day of March, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD C. WESLEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 MANPREET SINGH, 14 Petitioner, 15 16 v. 20-574 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Esq., Richmond 24 Hill, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Erica 28 B. Miles, Senior Litigation 1 Counsel; Jaclyn E. Shea, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Manpreet Singh, a native and citizen of India,
11 seeks review of a January 21, 2020, decision of the BIA
12 affirming a March 9, 2018, decision of an Immigration Judge
13 (“IJ”), denying his application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Manpreet Singh, No. A205 935 367 (B.I.A. Jan.
16 21, 2020), aff’g No. A205 935 367 (Immig. Ct. N.Y. City Mar.
17 9, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 I. Credibility and Corroboration
20 Under the circumstances, we have reviewed the decision
21 of the IJ as supplemented by the BIA. See Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review adverse
23 credibility determinations for substantial evidence. See
24 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 2 1 67, 76 (2d Cir. 2018). “Considering the totality of the
2 circumstances, and all relevant factors, a trier of fact may
3 base a credibility determination on the demeanor, candor, or
4 responsiveness of the applicant or witness, . . . the
5 consistency between the applicant’s or witness’s written and
6 oral statements . . . , the internal consistency of each such
7 statement, [and] the consistency of such statements with
8 other evidence of record . . . without regard to whether an
9 inconsistency, inaccuracy, or falsehood goes to the heart of
10 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
11 defer . . . to an IJ’s credibility determination unless, from
12 the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse credibility
14 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
15 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
16 evidence supports the adverse credibility determination.
17 The agency reasonably relied on inconsistencies between
18 Singh’s testimony and other evidence. See 8 U.S.C.
19 § 1158(b)(1)(B)(iii). Singh gave contradictory statements
20 about his political activities, providing in his affidavit
21 that he distributed flyers door-to-door, but explicitly
3 1 denying that he did so when testifying. Singh also made
2 inconsistent statements about how long he hid in Delhi after
3 his first alleged attack by Congress Party members, stating
4 in his affidavit that he returned to his village after a few
5 months, but testifying that he remained in Delhi for three
6 years. He provided the specific day of a month that he was
7 released from the hospital, but not the month or year that he
8 was hospitalized, and the day he gave was inconsistent with
9 the date in his affidavit. The IJ was not required to credit
10 Singh’s explanation that he forgot the dates and was too
11 “uneducated” to recall them, particularly as he provided
12 specific dates when preparing his application.
13 The agency also reasonably concluded that Singh’s
14 corroborating evidence did not rehabilitate his credibility.
15 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
16 (an alien’s “failure to corroborate his . . . testimony may
17 bear on credibility, because the absence of corroboration in
18 general makes an applicant unable to rehabilitate testimony
19 that has already been called into question.” The agency did
20 not err in declining to give weight to Singh’s documentary
21 evidence. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
4 1 2013) (“We defer to the agency’s determination of the weight
2 afforded to an alien’s documentary evidence.”). An affidavit
3 from Singh’s father was prepared by an individual who
4 simultaneously translated Singh’s father’s oral statement
5 from Punjabi to English and transcribed the statement in
6 English. The IJ did not err in declining to credit that
7 document because there was no evidence to confirm that the
8 translation was accurate. See Shunfu Li v. Mukasey, 529 F.3d
9 141, 149 (2d Cir. 2008) (holding that “we afford IJs
10 considerable flexibility in determining the authenticity of
11 . . . documents from the totality of the evidence”); cf.
12 8 C.F.R. § 1003.33 (“[A]ny foreign language document offered
13 by a party in a proceeding [in immigration court] shall be
14 accompanied by an English language translation, as well as by
15 a certification signed by the translator.”). Contrary to
16 Singh’s argument here, the IJ asked counsel to explain the
17 lack of certification. Singh also contends that the IJ
18 ignored country conditions evidence, but there is nothing in
19 the record to suggest that the IJ ignored material evidence
20 given the IJ’s statement that he considered all of the
21 documents in the record and his acknowledgment of political
5 1 tensions in India. See Zhi Yun Gao v. Mukasey, 508 F.3d 86,
2 87 (2d Cir. 2007) (agencies are not required to “expressly
3 parse or refute on the record each individual argument or
4 piece of evidence offered by the petitioner” (quotation marks
5 omitted)).
6 Considering the multiple inconsistencies and lack of
7 reliable corroboration, substantial evidence supports the
8 agency’s adverse credibility determination. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. This
10 adverse credibility determination is dispositive of asylum,
11 withholding of removal and CAT relief because all three claims
12 arose from the same factual predicate. See Paul v. Gonzales,
13 444 F.3d 148, 156–57 (2d Cir. 2006).
14 II. Motion to Remand
15 The BIA did not abuse its discretion by denying Singh’s
16 motion to remand for consideration of a neuropsychological
17 assessment that he obtained after his hearing. See Li Yong
18 Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005)
19 (reviewing BIA’s denial of remand for abuse of discretion).
20 As the BIA found, the evidence was not previously unavailable
21 as required for remand for consideration of additional
6 1 evidence because Singh could have obtained the evaluation
2 prior to his hearing before the IJ. Id. at 156; see also
3 8 C.F.R. § 1003.2(c)(1).
4 Nor did the agency deprive Singh of due process in
5 declining to remand for consideration of the report. “To
6 establish a violation of due process, an alien must show that
7 []he was denied a full and fair opportunity to present h[is]
8 claims or that the IJ or BIA otherwise deprived h[im] of
9 fundamental fairness.” Burger v. Gonzales, 498 F.3d 131, 134
10 (2d Cir. 2007) (quotation marks omitted). The BIA did not
11 err in concluding that Singh received due process because the
12 record does not show sufficient indicia of incompetency to
13 warrant an inquiry. “[T]he test for determining whether an
14 alien is competent to participate in immigration proceedings
15 is whether he . . . has a rational and factual understanding
16 of the nature and object of the proceedings, can consult with
17 the attorney or representative if there is one, and has a
18 reasonable opportunity to examine and present evidence and
19 cross-examine witnesses.” Matter of M-A-M-, 25 I. & N. Dec.
20 474, 479 (B.I.A. 2011). Aliens in immigration proceedings
21 are presumed competent and, only when indicia of incompetency
7 1 present themselves is the IJ required to render a competency
2 determination. Matter of J-S-S-, 26 I. & N. Dec. 679, 681
3 (B.I.A. 2015). Singh’s reliance on M-A-M- is misplaced
4 because that case involved a pro se respondent diagnosed with
5 schizophrenia; in contrast, Singh was represented by counsel,
6 the record reflected that he had been able to give counsel a
7 detailed statement of events, and the psychologist’s report
8 reflected some cognitive disability but also that his
9 thoughts were “logical” and that he was capable of “concrete
10 thinking.” Singh’s presentation of his evidence through
11 counsel evinced a “meaningful” opportunity to be heard, and
12 he was therefore not deprived of due process. Burger, 498
13 F.3d at 134.
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court