16-1753 Singh v. Sessions BIA Christensen, IJ A200 939 212

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of May, two thousand eighteen.

PRESENT: REENA RAGGI, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________

DAVINDER SINGH, Petitioner,

v. 16-1753 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Adrian Spirollari, Brooklyn, N.Y.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Davinder Singh, a native and citizen of India,

seeks review of a May 4, 2016 decision of the BIA affirming

a January 12, 2015 decision of an Immigration Judge (“IJ”)

denying Singh’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Davinder Singh, No. A200 939 212 (B.I.A. May

4, 2016), aff’g No. A200 939 212 (Immig. Ct. N.Y.C. Jan. 12,

2015).

Under the circumstances of this case, we review both the

IJ’s and the BIA’s decisions, see Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006), applying

well-established standards of review, see

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

, 165-

66 (2d Cir. 2008). In so doing, we assume familiarity with

the underlying facts and procedural history of this case,

which we reference only as necessary to explain our decision

to deny the petition.

Under the REAL ID Act of 2005, the agency may,

“[c]onsidering the totality of the circumstances,” base an 2 adverse credibility finding upon an asylum applicant’s

“demeanor, candor, or responsiveness” and inconsistencies in

his statements, without regard to whether those

inconsistencies go “to the heart of the applicant’s claim.”

(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey,

. “We defer . . . to an IJ’s credibility

determination unless . . . it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia Lin v. Mukasey,

. Thus, in challenging

an IJ’s credibility determination, “[a] petitioner must do

more than offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a

reasonable fact-finder would be compelled to credit his

testimony.” Majidi v. Gonzales,

(2d Cir.

2005) (emphasis in original) (internal quotation marks

omitted). For the reasons that follow, we conclude that Singh

has not made that showing and that substantial evidence

supports the agency’s determination that Singh was not

credible.

First, the agency’s reliance on Singh’s credible fear

interview was appropriate. A credible fear interview

warrants “close examination” because it may “be perceived as

coercive” by the alien or fail to “elicit all of the details 3 supporting an asylum claim.” Ming Zhang v. Holder,

(2d Cir. 2009). But “[w]here the record of a

credible fear interview displays the hallmarks of

reliability, it appropriately can be considered in assessing

an alien’s credibility.”

. Some “hallmarks of

reliability” are that the interview questions and answers

were memorialized, the interview was conducted through an

interpreter, and the questions were designed to elicit a

possible asylum claim.

These indicia of reliability

are present here: the record reflects the questions asked and

answers given; the interview was conducted through a Punjabi

interpreter; the questions of whether Singh had been harmed

and what would happen to him on return were designed to elicit

an asylum claim; and there is no indication that Singh was

reluctant to reveal information because he recounted in

detail his fear of a rival political party. Although Singh

contends that the credible fear interview was unreliable

because the interviewer did not read the record back to him,

Singh concedes that he intentionally omitted reference to his

prior police arrests during the interview. A review of his

interview account therefore would not have resulted in a more

thorough record. Accordingly, the agency appropriately

4 considered Singh’s credible fear interview in assessing his

credibility.

Second, the agency reasonably relied on the discrepancy

between Singh’s credible fear interview and his asylum

application in making the adverse credibility determination.

At his credible fear interview, Singh stated that he was

attacked by members of a rival political party, but his asylum

application states that he was arrested and beaten by the

Indian police. Singh’s explanation that a smuggler advised

him to avoid mentioning his fear of the police does not compel

a contrary result, because it was reasonable for the IJ to

conclude that Singh had changed his story to bolster his

claim. See Majidi v. Gonzales,

. Singh now

attributes his differing accounts to the credible-fear

interviewer, claiming that the interviewer asked him a

compound question—whether he had been arrested or convicted—

that made his answer of “no” ambiguous. This argument misses

the mark, however, because it does not resolve the

inconsistency between Singh’s claim that he was attacked by

political rivals and his claim that he was arrested and beaten

by the police.

The adverse credibility determination is further

supported by the inconsistencies between Singh’s testimony 5 and the letters he submitted from fellow members of the

Shiromani Akali Dal Amritsar (“SADA”). Singh testified that

he was arrested and detained in India and that SADA was aware

of his arrests. While the letters express general concern

about encounters with the police by party members, they make

no mention of Singh’s own arrests. The IJ reasonably relied

on this omission. Xiu Xia Lin v. Mukasey,

(upholding agency decision that rested on omissions from

letters).

Finally, the agency reasonably determined that Singh’s

corroborating evidence did not rehabilitate his credibility.

An applicant’s failure to corroborate testimony may bear on

credibility “because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.” Biao Yang v. Gonzales,

(2d Cir. 2007). Given that Singh’s

credibility was already in question, the agency reasonably

afforded diminished weight to Singh’s letters from his

father, wife, and head of his village in India because the

authors were unavailable for cross examination and his father

and wife were interested parties. See Y.C. v. Holder,

(2d Cir. 2013) (deferring to agency’s

determination that letter from relative in China was entitled 6 to limited weight because it was unsworn and submitted by an

interested witness). Additionally, the agency reasonably

gave diminished weight to medical records that Singh

submitted, which were prepared years after Singh received

treatment. Xiao Ji Chen v. U.S. Dep’t of Justice,

(2d Cir. 2006) (explaining that weight accorded to

applicant’s evidence “lies largely within the discretion of

the IJ” (internal alteration and quotation marks omitted)).

Given the inconsistencies in Singh’s account and the lack

of reliable or consistent corroboration, the totality of the

circumstances supports the agency’s adverse credibility

determination. See Xiu Xia Lin v. Mukasey,

-

67. The credibility finding is dispositive of asylum,

withholding of removal, and CAT relief because all three forms

of relief were based on the same factual predicate. See Paul

v. Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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