NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DILBAG SINGH, No. 22-1194 Agency No. Petitioner, A087-998-582 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 8, 2023** San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Dilbag Singh, an Indian citizen, petitions for review of the Board of
Immigrations Appeals’ (BIA) dismissal of his appeal of the Immigration Judge’s
(IJ) decision. The IJ denied Singh’s application for asylum, withholding of
* 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). removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. Because the parties are familiar with the facts,
we do not restate them here. For the reasons stated below, we deny the petition.
We review the agency’s factual findings, including an adverse credibility
determination, for substantial evidence, meaning “findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022)
(emphasis removed) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.
2006)). “[U]nder the REAL ID Act, credibility determinations are [reviewed]
based on the ‘totality of the circumstances and all relevant factors.’” Alam v.
Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). We also review the BIA’s denial of CAT relief for
substantial evidence. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1201 (9th Cir.
2023).
1. Substantial evidence supports the agency’s adverse credibility
determination. First, the agency properly relied on the fact that Singh alternated the
basis of his asylum claim between his border interview, credible fear interview,
and asylum application. At the border, Singh based his claim on fear of persecution
because of his support for the Shiromani Akali Dal (“Mann”) Party; in his credible
fear interview, he claimed that he feared his in-laws who opposed his marriage;
2 and in his asylum application, he reverted to claiming that his fear of persecution
was based on his support for the Mann Party. Additionally, the agency noted that,
at Singh’s credible fear interview, Singh twice affirmed that he feared returning to
India only because of his in-laws’ disapproval of his marriage. Although Singh
ultimately testified to fearing both political persecution and harm from his in-laws,
Singh’s prior omissions were material. “Material alterations in the applicant’s
account of persecution,” including changes to “the basis of his claim . . . between
his asylum application and subsequent testimony,” are sufficient to sustain an
adverse credibility finding. Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011).
The agency properly considered Singh’s responses at the border and credible
fear interviews. At his border interview, Singh swore to speak truthfully, initialed
each page of the interview notes, and signed a statement at the end affirming his
answers. At Singh’s credible fear interview, the interviewing officer administered
an oath before questioning Singh. Both interview notes contained transcribed
questions and answers. An interpreter was present during both interviews and
Singh does not allege any issues with translation during these interviews. Where
border and credible fear interviews are “conducted under oath, with
contemporaneous notes containing the questions asked, and transcribed . . . with
the aid of an interpreter,” there are “sufficient indicia of reliability to permit [the
agency] to consider [them].” Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir.
3 2020). Additionally, Singh testified that he intentionally omitted one of his two
bases for seeking asylum in each instance and does not contest the accuracy of the
officers’ notes for either interview. On this record, Singh cannot show that “the
outcome of the proceeding may have been affected” had he been allowed to cross
examine the interviewing officers. Alcaraz-Enriquez v. Garland, 19 F.4th 1224,
1231–32 (9th Cir. 2021) (quoting Cinapian v. Holder, 567 F.3d 1067, 1074 (9th
Cir. 2009)).
The agency also properly based the adverse credibility determination on the
inconsistent dates of when Singh was arrested for participating in Mann Party
activity stated in Singh’s asylum application and his subsequent affidavit. The
most significant inconsistency involved dates that were three years apart. When
assessing credibility, “an IJ may rely upon an inconsistency in a ‘crucial date’
concerning the ‘very event upon which [an applicant] predicated his claim for
asylum.’” Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021)
(citation omitted).
Singh testified that his asylum application omitted his fear of his in-laws
because of counsel errors, and he argues that the agency denied him due process in
rejecting that explanation. However, the IJ properly gave Singh an opportunity to
explain these inconsistencies, and the agency was not compelled to accept Singh’s
explanations. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (“[T]he Board
4 and IJ [are] not required to accept [the applicant’s] explanation for [a] discrepancy”
where “the record does not compel a contrary conclusion.”).
Furthermore, an appeal is not the proper avenue to bring an ineffective
assistance of counsel claim. See Correa-Rivera v. Holder, 706 F.3d 1128, 1130
(9th Cir. 2013) (“[A] motion to reopen is the only avenue ordinarily available to
pursue ineffective assistance of counsel claims.”) (citation omitted). And even if
we found this to be a “clear and obvious case” of counsel error, Singh cannot show
prejudice. Id. at 1131, 1133 (“[Procedural requirements] are not rigidly applied . . .
when the record shows a clear and obvious case of ineffective assistance,” but
petitioner must show that “the performance of counsel was so inadequate that it
may have affected the outcome of the proceedings.”) (citation omitted). Even
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DILBAG SINGH, No. 22-1194 Agency No. Petitioner, A087-998-582 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 8, 2023** San Francisco, California
Before: COLLINS, FORREST, and SUNG, Circuit Judges.
Dilbag Singh, an Indian citizen, petitions for review of the Board of
Immigrations Appeals’ (BIA) dismissal of his appeal of the Immigration Judge’s
(IJ) decision. The IJ denied Singh’s application for asylum, withholding of
* 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). removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. Because the parties are familiar with the facts,
we do not restate them here. For the reasons stated below, we deny the petition.
We review the agency’s factual findings, including an adverse credibility
determination, for substantial evidence, meaning “findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022)
(emphasis removed) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.
2006)). “[U]nder the REAL ID Act, credibility determinations are [reviewed]
based on the ‘totality of the circumstances and all relevant factors.’” Alam v.
Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). We also review the BIA’s denial of CAT relief for
substantial evidence. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1201 (9th Cir.
2023).
1. Substantial evidence supports the agency’s adverse credibility
determination. First, the agency properly relied on the fact that Singh alternated the
basis of his asylum claim between his border interview, credible fear interview,
and asylum application. At the border, Singh based his claim on fear of persecution
because of his support for the Shiromani Akali Dal (“Mann”) Party; in his credible
fear interview, he claimed that he feared his in-laws who opposed his marriage;
2 and in his asylum application, he reverted to claiming that his fear of persecution
was based on his support for the Mann Party. Additionally, the agency noted that,
at Singh’s credible fear interview, Singh twice affirmed that he feared returning to
India only because of his in-laws’ disapproval of his marriage. Although Singh
ultimately testified to fearing both political persecution and harm from his in-laws,
Singh’s prior omissions were material. “Material alterations in the applicant’s
account of persecution,” including changes to “the basis of his claim . . . between
his asylum application and subsequent testimony,” are sufficient to sustain an
adverse credibility finding. Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011).
The agency properly considered Singh’s responses at the border and credible
fear interviews. At his border interview, Singh swore to speak truthfully, initialed
each page of the interview notes, and signed a statement at the end affirming his
answers. At Singh’s credible fear interview, the interviewing officer administered
an oath before questioning Singh. Both interview notes contained transcribed
questions and answers. An interpreter was present during both interviews and
Singh does not allege any issues with translation during these interviews. Where
border and credible fear interviews are “conducted under oath, with
contemporaneous notes containing the questions asked, and transcribed . . . with
the aid of an interpreter,” there are “sufficient indicia of reliability to permit [the
agency] to consider [them].” Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir.
3 2020). Additionally, Singh testified that he intentionally omitted one of his two
bases for seeking asylum in each instance and does not contest the accuracy of the
officers’ notes for either interview. On this record, Singh cannot show that “the
outcome of the proceeding may have been affected” had he been allowed to cross
examine the interviewing officers. Alcaraz-Enriquez v. Garland, 19 F.4th 1224,
1231–32 (9th Cir. 2021) (quoting Cinapian v. Holder, 567 F.3d 1067, 1074 (9th
Cir. 2009)).
The agency also properly based the adverse credibility determination on the
inconsistent dates of when Singh was arrested for participating in Mann Party
activity stated in Singh’s asylum application and his subsequent affidavit. The
most significant inconsistency involved dates that were three years apart. When
assessing credibility, “an IJ may rely upon an inconsistency in a ‘crucial date’
concerning the ‘very event upon which [an applicant] predicated his claim for
asylum.’” Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021)
(citation omitted).
Singh testified that his asylum application omitted his fear of his in-laws
because of counsel errors, and he argues that the agency denied him due process in
rejecting that explanation. However, the IJ properly gave Singh an opportunity to
explain these inconsistencies, and the agency was not compelled to accept Singh’s
explanations. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (“[T]he Board
4 and IJ [are] not required to accept [the applicant’s] explanation for [a] discrepancy”
where “the record does not compel a contrary conclusion.”).
Furthermore, an appeal is not the proper avenue to bring an ineffective
assistance of counsel claim. See Correa-Rivera v. Holder, 706 F.3d 1128, 1130
(9th Cir. 2013) (“[A] motion to reopen is the only avenue ordinarily available to
pursue ineffective assistance of counsel claims.”) (citation omitted). And even if
we found this to be a “clear and obvious case” of counsel error, Singh cannot show
prejudice. Id. at 1131, 1133 (“[Procedural requirements] are not rigidly applied . . .
when the record shows a clear and obvious case of ineffective assistance,” but
petitioner must show that “the performance of counsel was so inadequate that it
may have affected the outcome of the proceedings.”) (citation omitted). Even
without the asylum application omission, other material omissions and
inconsistencies, and Singh’s testimony that he made the omissions intentionally,
provide sufficient support for the adverse credibility determination.
Because the agency found Singh not credible, it was not required to give him
“notice and an opportunity to provide additional corroborating evidence.”
Mukulumbutu, 977 F.3d at 927. Moreover, substantial evidence supports the
agency’s finding that the affidavits from Singh’s family and associates did not
sufficiently rehabilitate his credibility as the authors were not available for cross-
examination, see id., the affidavits were vague, and they contained inconsistencies.
5 “Without credible testimony or sufficient corroborating evidence,” Singh cannot
establish his claims for asylum and withholding of removal. Id.
2. Substantial evidence supports the denial of CAT protection. Absent credible
testimony, Singh’s claim relies on country conditions evidence and affidavits from
family and acquaintances to show “that it is more likely than not that [Singh] will
be tortured.” Id. The agency found that Singh showed generalized evidence of
violence but not a specific risk that he would be tortured, and that Singh could
safely relocate within India to avoid future torture. The record does not compel a
contrary conclusion. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019)
(denying CAT claim where record showed police engaged in human rights
violations but “evidence specific to Mann Party members is sparse” and suggested
that “members are targeted primarily when they are high-profile militants”). And
while Singh argues that the agency failed to consider the letters and affidavits from
his associates, “nothing in the record or the [agency’s] decision indicates a failure
to consider all the evidence.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011).
PETITION DENIED.