Singh v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Gurwinder Singh, No. 22-745 Agency No. Petitioner, A209-157-555 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 18, 2023** San Francisco, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.

Petitioner Gurwinder Singh, a native and citizen of India, petitions for

review of the Board of Immigration Appeals’ (BIA) order affirming the

Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252 and deny the petition. Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th

Cir. 2013).

Credibility findings are reviewed for substantial evidence and “are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B); Cui, 712 F.3d at 1336. Substantial

evidence supports the adverse credibility determination. At the credible fear

interview and in his initial declaration, Singh testified that he was twice beaten

by local police and political factions, but his attackers said nothing to him. Before

the IJ, Singh testified that his second attackers said they will kill him and

associated themselves with the first attack. When confronted with the

inconsistency, Singh blamed issues with the translator at his credible fear

interview. But at the end of his interview, he affirmed the summary of his story

and stated he understood the translator.

Singh argues that the BIA did not consider the record as a whole and that

his testimony was consistent. The BIA and IJ properly considered his credible

fear interview, declarations, and in-court testimony. See Lizhi Qiu v. Barr, 944

F.3d 837, 843 (9th Cir. 2019), overruled on other grounds by Alam v. Garland,

11 F.4th 1133 (9th Cir. 2021) (where an asylum officer’s notes have “sufficient

indicia of reliability . . . an IJ may consider inconsistencies between what a

petitioner said to an asylum officer and the petitioner’s testimony”). The BIA

found the interview reliable after Singh’s counsel failed to object to its admission.

2 22-745 And the different statements cannot be reconciled.

Singh argues that even if there was an inconsistency, it was immaterial and

trivial. But the threat allegedly made during the second attack is the only basis

by which Singh identifies his masked attackers and links the first attack to the

second. Material inconsistencies do not need to go to the heart of the petitioner’s

claim, see Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010), but this

evidence is certainly central to Singh’s claim and could properly be relied upon

by the IJ in making an adverse credibility determination.

The documentary evidence does not compel reversing the credibility

finding. Singh provided affidavits from interested parties including his father and

other members of his political party. The IJ gave no weight to the affidavits

because none of the witnesses were available for cross-examination. Petitioner

provides no additional evidence to verify these documents. See Mukulumbutu v.

Barr, 977 F.3d 924, 927 (9th Cir. 2020); Garcia v. Holder, 749 F.3d 785, 791

(9th Cir. 2014). The IJ also did not rely on the medical document provided

because the document was a summary prepared three years after the fact and bears

the words “NOT FOR MEDICO-LEGAL PURPOSE.” Substantial evidence

supports the BIA’s ruling that the additional documents do not rehabilitate

Singh’s credibility.

Without credible testimony or independent evidence, the record does not

compel reversing the denial of asylum, withholding of removal, or relief under

CAT.

3 22-745 Petition DENIED.1

1 The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Dkt. No. 2) is otherwise denied as moot.

4 22-745