18-565 Singh v. Wilkinson BIA Loprest, IJ A 205 935 200 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of February, two thousand twenty-one. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 PARAMJIT SINGH, 14 Petitioner, 15 16 v. 18-565 17 NAC 18 ROBERT M. WILKINSON, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Paramjit Singh, pro se, South 24 Richmond Hill, NY.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for Acting Attorney General Jeffrey A. Rosen as Respondent. 1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 2 Assistant Attorney General; M. 3 Jocelyn Lopez Wright, Senior 4 Litigation Counsel; Christopher 5 Buchanan, Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DISMISSED in part and DENIED in remaining part.
13 Petitioner Paramjit Singh, a native and citizen of
14 India, seeks review of a February 1, 2018 decision of the
15 BIA affirming a January 27, 2017 decision of an Immigration
16 Judge (“IJ”) denying Singh’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Paramjit Singh, No. A 205
19 935 200 (B.I.A. Feb. 1, 2018), aff’g No. A 205 935 200
20 (Immig. Ct. N.Y. City Jan. 27, 2017). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history.
23 We have reviewed both the IJ’s and BIA’s decisions “for
24 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524,
25 528 (2d Cir. 2008). The applicable standards of review are
2 1 well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). As set forth
3 below, we lack jurisdiction to review the agency’s denial of
4 the asylum claim as time barred; alternatively, the agency’s
5 adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief.
7 I. Timeliness
8 An asylum applicant must “demonstrate[] by clear and
9 convincing evidence that the application has been filed
10 within 1 year after the date of the alien’s arrival in the
11 United States.” 8 U.S.C. § 1158(a)(2)(B). Singh does not
12 dispute that he filed his asylum application after the
13 deadline. The agency may excuse the one-year deadline “if
14 the alien demonstrates . . . changed circumstances which
15 materially affect the applicant’s eligibility for asylum or
16 extraordinary circumstances relating to the delay,” id. at
17 § 1158(a)(2)(D), and the application is filed within a
18 reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5). Our
19 jurisdiction to review the agency’s timeliness determination
20 is limited to “constitutional claims and questions of law.”
21 8 U.S.C. § 1252(a)(2)(D); see id. § 1158(a)(3).
22 Singh contends that the IJ tacitly extended the 3 1 deadline for filing his application by scheduling a hearing
2 after the deadline. This argument is unavailing. At a
3 December 2013 hearing, the IJ cautioned Singh’s counsel that
4 the asylum application deadline was approaching and warned
5 him to “try to get the application into the Immigration
6 Court window . . . before that date . . . [to] preserve his
7 eligibility for . . . asylum.” Certified Administrative Record
8 at 132-33 (Hr’g Tr.). Singh’s and his lawyer’s misunderstanding
9 of the deadline and the IJ’s conclusion that filing an
10 application late was not alone an “extraordinary circumstance”
11 does not implicate any legal or constitutional error. See 8
12 C.F.R. § 1208.4(a)(5) (“extraordinary circumstances . . . include
13 but are not limited to” death, serious illness, and incapacity);
14 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
15 2006) (Court lacks jurisdiction to review “correctness of an IJ’s
16 fact-finding or the wisdom of his exercise of discretion”).
17 Alternatively, the adverse credibility determination is
18 dispositive.
19 II. Credibility
20 We review the agency’s adverse credibility determination for
21 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao
22 v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the
23 totality of the circumstances, and all relevant factors, a trier
4 1 of fact may base a credibility determination on the demeanor,
2 candor, or responsiveness of the applicant or witness, . . . the
3 consistency between the applicant’s or witness’s written and oral
4 statements . . . , the internal consistency of each such
5 statement, the consistency of such statements with other evidence
6 of record . . . , and any inaccuracies or falsehoods in such
7 statements, without regard to whether an inconsistency,
8 inaccuracy, or falsehood goes to the heart of the applicant’s
9 claim, or any other relevant factor.” 8 U.S.C. §
10 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
11 determination unless . . . it is plain that no reasonable fact-
12 finder could make such an adverse credibility ruling.” Xiu Xia
13 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
14 Gao, 891 F.3d at 76. Substantial evidence supports the adverse
15 credibility determination.
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18-565 Singh v. Wilkinson BIA Loprest, IJ A 205 935 200 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of February, two thousand twenty-one. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 PARAMJIT SINGH, 14 Petitioner, 15 16 v. 18-565 17 NAC 18 ROBERT M. WILKINSON, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent.1 21 _____________________________________ 22 23 FOR PETITIONER: Paramjit Singh, pro se, South 24 Richmond Hill, NY.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for Acting Attorney General Jeffrey A. Rosen as Respondent. 1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 2 Assistant Attorney General; M. 3 Jocelyn Lopez Wright, Senior 4 Litigation Counsel; Christopher 5 Buchanan, Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DISMISSED in part and DENIED in remaining part.
13 Petitioner Paramjit Singh, a native and citizen of
14 India, seeks review of a February 1, 2018 decision of the
15 BIA affirming a January 27, 2017 decision of an Immigration
16 Judge (“IJ”) denying Singh’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Paramjit Singh, No. A 205
19 935 200 (B.I.A. Feb. 1, 2018), aff’g No. A 205 935 200
20 (Immig. Ct. N.Y. City Jan. 27, 2017). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history.
23 We have reviewed both the IJ’s and BIA’s decisions “for
24 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524,
25 528 (2d Cir. 2008). The applicable standards of review are
2 1 well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). As set forth
3 below, we lack jurisdiction to review the agency’s denial of
4 the asylum claim as time barred; alternatively, the agency’s
5 adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief.
7 I. Timeliness
8 An asylum applicant must “demonstrate[] by clear and
9 convincing evidence that the application has been filed
10 within 1 year after the date of the alien’s arrival in the
11 United States.” 8 U.S.C. § 1158(a)(2)(B). Singh does not
12 dispute that he filed his asylum application after the
13 deadline. The agency may excuse the one-year deadline “if
14 the alien demonstrates . . . changed circumstances which
15 materially affect the applicant’s eligibility for asylum or
16 extraordinary circumstances relating to the delay,” id. at
17 § 1158(a)(2)(D), and the application is filed within a
18 reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5). Our
19 jurisdiction to review the agency’s timeliness determination
20 is limited to “constitutional claims and questions of law.”
21 8 U.S.C. § 1252(a)(2)(D); see id. § 1158(a)(3).
22 Singh contends that the IJ tacitly extended the 3 1 deadline for filing his application by scheduling a hearing
2 after the deadline. This argument is unavailing. At a
3 December 2013 hearing, the IJ cautioned Singh’s counsel that
4 the asylum application deadline was approaching and warned
5 him to “try to get the application into the Immigration
6 Court window . . . before that date . . . [to] preserve his
7 eligibility for . . . asylum.” Certified Administrative Record
8 at 132-33 (Hr’g Tr.). Singh’s and his lawyer’s misunderstanding
9 of the deadline and the IJ’s conclusion that filing an
10 application late was not alone an “extraordinary circumstance”
11 does not implicate any legal or constitutional error. See 8
12 C.F.R. § 1208.4(a)(5) (“extraordinary circumstances . . . include
13 but are not limited to” death, serious illness, and incapacity);
14 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
15 2006) (Court lacks jurisdiction to review “correctness of an IJ’s
16 fact-finding or the wisdom of his exercise of discretion”).
17 Alternatively, the adverse credibility determination is
18 dispositive.
19 II. Credibility
20 We review the agency’s adverse credibility determination for
21 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao
22 v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the
23 totality of the circumstances, and all relevant factors, a trier
4 1 of fact may base a credibility determination on the demeanor,
2 candor, or responsiveness of the applicant or witness, . . . the
3 consistency between the applicant’s or witness’s written and oral
4 statements . . . , the internal consistency of each such
5 statement, the consistency of such statements with other evidence
6 of record . . . , and any inaccuracies or falsehoods in such
7 statements, without regard to whether an inconsistency,
8 inaccuracy, or falsehood goes to the heart of the applicant’s
9 claim, or any other relevant factor.” 8 U.S.C. §
10 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
11 determination unless . . . it is plain that no reasonable fact-
12 finder could make such an adverse credibility ruling.” Xiu Xia
13 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
14 Gao, 891 F.3d at 76. Substantial evidence supports the adverse
15 credibility determination.
16 The agency reasonably relied on multiple inconsistencies
17 among Singh’s interview statements, application, and testimony
18 regarding his political activities in India and whether he was a
19 victim of attacks by members of a rival party. See 8 U.S.C. §
20 1158(b)(1)(B)(iii). At his first interview following his entry,
21 Singh stated that he was not a member of a political party, but
22 explained that his father was a member of the Shiromani Akali Dal
23 Amritsar party (“SADA”) and that his uncle was a member of SADA’s
5 1 rival party, the Congress Party. At that initial interview,
2 Singh identified one incident of past harm: he alleged that his
3 uncle “got drunk” and beat him “every night” for refusing to join
4 the Congress Party. At Singh’s subsequent interview and in his
5 application for asylum, however, Singh’s testimony concerning his
6 affiliation with SADA and the alleged assaults was notably
7 different. Ultimately, Singh testified that he was a member of
8 SADA, and that he believed his uncle may have been an informant
9 for the Congress Party. Singh further testified that his uncle
10 never hurt him for his political affiliation, but that he was
11 twice assaulted by other Congress Party members because of his
12 support for SADA.
13 Singh’s explanations for these inconsistencies fail to show
14 that he is entitled to relief. When asked to explain the
15 inconsistent testimony regarding the alleged assaults, for
16 example, Singh testified that he was being pursued by “the mafia”
17 at the time of his initial interview and was therefore afraid to
18 state his claims accurately. The agency was not required to
19 credit this explanation. See Majidi v. Gonzales, 430 F.3d 77, 80
20 (2d Cir. 2005) (“A petitioner must do more than offer a plausible
21 explanation for his inconsistent statements to secure relief; he
22 must demonstrate that a reasonable fact-finder would be compelled
23 to credit his testimony.” (internal quotation mars omitted)).
6 1 And Singh’s current argument that his testimony was internally
2 consistent misses the mark; the IJ’s adverse credibility
3 determination focused on inconsistencies between Singh’s
4 testimony and his initial interview, not on discrepancies within
5 Singh’s testimony alone.
6 Given Singh’s failure to explain these inconsistencies, the
7 IJ did not err by noting other gaps in Singh’s application that
8 bore on his credibility. For example, although Singh’s
9 application alleged two assaults, Singh added at the hearing that
10 his attackers used clubs and sticks. While Singh explained that
11 he omitted these details from his application because of its
12 “truncated form,” that explanation is not compelling in light of
13 other inconsistencies noted above and the fact that Singh filed a
14 four-page written statement with his application. See id.
15 Because the two assaults are Singh’s sole allegations of past
16 harm, the inconsistencies and omissions relating to them--
17 including how they were executed, who was responsible, and
18 whether they occurred at all--provide substantial evidence for
19 the IJ’s adverse credibility determination, particularly when
20 viewed in combination with the inconsistencies regarding Singh’s
21 political affiliation and activities. See Xian Tuan Ye v. DHS,
22 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a material
23 inconsistency” relating to “the very persecution from which [the
7 1 applicant] sought asylum . . . afforded substantial evidence to
2 support the adverse credibility finding” (internal quotation
3 marks and citation omitted)).
4 The adverse credibility determination is further supported
5 by the agency’s findings regarding demeanor and corroboration.
6 The IJ observed that Singh’s testimony on direct was a “script-
7 like” recitation that shifted to a “vague” and evasive account
8 during cross. We accord “particular deference” to an IJ’s
9 demeanor findings. See Li Hua Lin v. U.S. Dep’t of Justice, 453
10 F.3d 99, 109 (2d Cir. 2006); see also Tu Lin v. Gonzales, 446
11 F.3d 395, 401 (2d Cir. 2006) (reiterating that IJ is in best
12 position to determine if applicant is “struggling to remember the
13 lines of a carefully crafted script” (internal quotation marks
14 omitted)). Given this demeanor finding and the inconsistencies
15 already discussed, the agency did not err in also relying on
16 Singh’s failure to rehabilitate his credibility with reliable
17 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268,
18 273 (2d Cir. 2007) (“An applicant’s failure to corroborate . . .
19 testimony may bear on credibility, because the absence of
20 corroboration in general makes an applicant unable to
21 rehabilitate testimony that has already been called into
22 question.”). The agency was not required to credit the letters
23 from Singh’s father because he was an interested party not
8 1 subject to cross examination and because his letters did not
2 confirm the details of the alleged attacks. See Y.C. v. Holder,
3 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that agency has
4 discretion to determine weight of the evidence and upholding
5 agency’s rejection of letter from applicant’s spouse); Matter of
6 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving
7 diminished weight to letters from friends and relatives because
8 they were from interested witnesses not subject to cross-
9 examination), overruled on other grounds by Hui Lin Huang v.
10 Holder, 677 F.3d 130 (2d Cir. 2012). The authors of the
11 remaining letters also were not subject to cross examination and
12 neither those letters nor the letter from Singh’s New York temple
13 corroborate the alleged assaults.
14 In sum, the agency’s findings provide substantial evidence
15 for the adverse credibility determination. See 8 U.S.C. §
16 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67. The adverse
17 credibility determination is dispositive of asylum, withholding
18 of removal, and CAT relief because all three forms of relief are
19 based on the same factual predicate. See Paul v. Gonzales, 444
20 F.3d 148, 156–57 (2d Cir. 2006). Accordingly, we do not reach
21 the agency’s alternative findings. See INS v. Bagamasbad, 429
22 U.S. 24, 25 (1976) (“As a general rule courts are not required to
23 make findings on issues the decision of which is unnecessary to
9 1 the results they reach.”).
2 For the foregoing reasons, the petition for review is
3 DISMISSED in part and DENIED in remaining part. All pending
4 motions and applications are DENIED and stays VACATED.
5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court 8 9 10 11 12 13 14 15 16