17-272 Singh v. Sessions BIA Loprest, IJ A205 069 193 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 20th day of April, two thousand eighteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 PETER W. HALL, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 LAKWINDER SINGH, 15 Petitioner, 16 17 v. 17-272 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jaspreet Singh, Law Office of 25 Jaspreet Singh, Jackson Heights, 26 NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Stephen J. 30 Flynn, Assistant Director; Ann 31 Welhaf, Sergio Sarkany, Trial 1 Attorneys, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 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 Lakwinder Singh, a native and citizen of

11 India, seeks review of a December 27, 2016 decision of the

12 BIA affirming a February 29, 2016 decision of an Immigration

13 Judge (“IJ”) denying Singh’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Lakwinder Singh, No. A 205

16 069 193 (B.I.A. Dec. 27, 2016), aff’g No. A 205 069 193

17 (Immig. Ct. N.Y. City Feb. 29, 2016). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 In lieu of filing a brief, the Government moves for

21 summary denial of Singh’s petition for review. Summary

22 denial is warranted only if a petition is frivolous, Pillay

23 v. INS,

(2d Cir. 1995), and Singh has filed

2 1 his merits brief. Accordingly, we treat the Government’s

2 motion as a response to that brief, and deny the petition.

3 We have “review[ed] the IJ’s decision as the final agency

4 determination.” Shunfu Li v. Mukasey,

(2d

5 Cir. 2008). The applicable standards of review are well

6 established. See

(b)(4)(B); Xiu Xia Lin v.

7 Mukasey,

(2d Cir. 2008). “Considering

8 the totality of the circumstances, . . . a trier of fact may

9 base a credibility determination on the demeanor, candor, or

10 responsiveness of the applicant[,] . . . the consistency

11 between the applicant’s or witness’s written and oral

12 statements[,] . . . the internal consistency of each such

13 statement, the consistency of such statements with other

14 evidence of record . . . and any inaccuracies or falsehoods

15 in such statements, 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.” 8

(b)(1)(B)(iii); see also Xiu Xia Lin,

.

20 The agency’s adverse credibility determination is

21 supported by substantial evidence. In making its 3 1 determination, the agency reasonably relied on

2 inconsistencies and omissions in Singh’s various statements.

3 See

(b)(1)(B)(iii); Xiu Xia Lin,

166-67 & n.3 (“An inconsistency and an omission are . . .

5 functionally equivalent.”). First, as the IJ found, Singh

6 testified that he never sought to travel to the United States

7 before 2010, when he allegedly was mistreated by members of

8 the Congress Party, but the Government produced documentation

9 showing that he sought a visa in 2009. The IJ reasonably

10 concluded that this inconsistency raised “a reasonable

11 inference that [Singh] hoped that his application (and the

12 fact that it was made before his alleged persecution) would

13 go unnoticed.” Special App’x 39. See Xiu Xia Lin,

(holding that IJ may “rely on omissions and

15 inconsistencies that do not directly relate to the

16 applicant’s claim of persecution as long as the totality of

17 the circumstances establish that the applicant is not

18 credible”).

19 Second, we find no error in the IJ’s reliance on Singh’s

20 statement at his border interview that he had suffered

21 constant police harassment as inconsistent with his later 4 1 statement that he suffered abuse at the hands of Congress

2 party members. The interview record was sufficiently

3 reliable: it was created in the normal course of business;

4 the interviewer explained the purpose of the interview; the

5 interview was conducted through an interpreter; Singh was

6 advised of his rights and placed under oath; and the

7 interviewer asked Singh both an open-ended question about his

8 fear of returning to India and whether he wished to make any

9 additional statements. Although we have cautioned against

10 placing too much emphasis on omissions from an initial

11 interview because someone fleeing persecution may be

12 apprehensive of authorities or feel coerced or threatened,

13 Latifi v. Gonzales,

(2d Cir. 2005), the

14 record contains no evidence of such circumstances here. The

15 inconsistency in Singh’s statements—his later testimony that

16 he was threatened and beaten by Congress Party members, and

17 his interview statement that he had been harassed by the

18 police—provides substantial support for the IJ’s credibility

19 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec.,

20

(2d Cir. 2006) (holding that material

21 inconsistency relating to central aspect of asylum claim 5 1 provided substantial evidence for adverse credibility

2 determination). The agency was not compelled to accept

3 Singh’s explanations that he was nervous and that the Congress

4 Party controlled the police, because these explanations did

5 not answer why he would first identify “the police” as his

6 harassers when all of his subsequent statements mentioned

7 only Congress Party members. See Majidi v. Gonzales, 430

(2d Cir. 2005) (“A petitioner must do more than

9 offer a plausible explanation for his inconsistent statements

10 to secure relief; he must demonstrate that a reasonable fact-

11 finder would be compelled to credit his testimony.” (internal

12 quotation marks and citation omitted)); Ming Zhang v. Holder,

13

(2d Cir. 2009) (reasoning that

14 applicant’s “mere recitation that he was nervous or felt

15 pressured during an airport interview will not automatically

16 prevent” the agency from relying on the interview).

17 Third, the IJ reasonably relied on Singh’s omission from

18 his asylum application of any mention of having sought medical

19 treatment. See Xiu Xia Lin,

n.3. Singh

20 testified that he sought treatment at a hospital after an

21 October 2010 attack, but his application was silent on this 6 1 significant point, which would have reflected the gravity of

2 his injuries. See Ming Zhang,

.

3 In addition to these inconsistencies, the agency’s

4 adverse credibility determination was supported by the IJ’s

5 demeanor finding. That finding was grounded in Singh’s

6 failure to provide any specific dates in his credible fear

7 interview or on cross-examination in his agency hearing,

8 despite the inclusion of such details in his asylum

9 application and his direct testimony before the IJ. See 8

(b)(1)(B)(iii). The IJ reasonably concluded

11 that Singh’s inconsistent memory of dates was an indication

12 that Singh may have been testifying from a script. See Li

13 Hua Lin v. U.S. Dep’t of Justice,

(2d Cir.

14 2006) (“We can be still more confident in our review of

15 observations about an applicant’s demeanor where, as here,

16 [the observations] are supported by specific examples of

17 inconsistent testimony.”).

18 Finally, the agency reasonably relied on Singh’s failure

19 to rehabilitate his testimony with corroborating evidence.

20 Biao Yang v. Gonzales,

(2d Cir. 2007) (“An

21 applicant’s failure to corroborate his or her testimony may 7 1 bear on credibility, because the absence of corroboration in

2 general makes an applicant unable to rehabilitate testimony

3 that has already been called into question.”). The IJ did

4 not err in giving limited weight to Singh’s documentary

5 evidence, particularly since some of the affidavits that

6 Singh presented closely tracked the language of his personal

7 statement, thus calling into question their authorship. See

8 Y.C. v. Holder,

(2d Cir. 2013) (“We

9 generally defer to the agency's evaluation of the weight to

10 be afforded an applicant’s documentary evidence.”); Mei Chai

11 Ye v. U.S. Dep’t of Justice,

(2d Cir. 2007)

12 (holding that “striking similarities between affidavits are

13 an indication that the statements are ‘canned’”).

14 These inconsistencies and this omission, the

15 questionable corroborating evidence, and the IJ’s demeanor

16 finding provide substantial evidence for the agency’s adverse

17 credibility determination.

(b)(1)(B)(iii);

18 Xiu Xia Lin, 534 F.3d at 166-67. That determination is

19 dispositive of Singh’s claims for asylum, withholding of

20 removal, and CAT relief, because all three claims rest on the

21 same factual predicate. See Paul v. Gonzales,

, 8 1 156-57 (2d Cir. 2006).

2 For the foregoing reasons, the petition for review is

3 DENIED. As we have completed our review, the Government’s

4 motion for summary denial is DENIED as moot. Any pending

5 request for oral argument in this petition is DENIED in

6 accordance with Federal Rule of Appellate Procedure 34(a)(2),

7 and Second Circuit Local Rule 34.1(b).

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk

9