17-550 Singh v. Sessions BIA Hom, IJ A206 443 902 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 28th day of August, two thousand eighteen.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, RICHARD C. WESLEY, Circuit Judges. _____________________________________

FATEH SINGH, Petitioner,

v. 17-550 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Dalbir Singh, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Lynda A. Do, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 GRANTED, and the case is REMANDED.

Petitioner Fateh Singh, a native and citizen of India,

seeks review of a January 27, 2017, decision of the BIA

affirming a September 28, 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 Fateh Singh, No. A 206 443

902 (B.I.A. Jan. 27, 2017), aff’g No. A 206 443 902 (Immig.

Ct. N.Y. City Sept. 28, 2015). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). We review the agency’s adverse

credibility determinations under a substantial evidence

standard. See

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

2 Mukasey,

(2d Cir. 2008). The governing

REAL ID Act credibility standard provides as follows:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant’s or witness’s written and oral statements . . . the internal consistency of each such statement, the consistency of such statements with other evidence of record . . . and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

(b)(1)(B)(iii). “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,

.

In this case, the petitioner alleged persecution by

governmental authorities because of his membership in a pro-

Sikh independence party. He testified in detail that on three

occasions he was arrested, detained, and severely beaten.

These episodes occurred in 2009, 2012, and 2013. The agency

concluded that he was not credible because of what it

considered two inconsistencies in his testimony. The first

concerned his account of the medical treatment he received

3 after the 2009 and 2012 episodes. The second concerned the

source of funds expended on the petitioner’s behalf.

Petitioner was first questioned about medical treatment

he received after the 2012 episode. He said treatment was

provided by a “local doctor” in the village. Certified

Administrative Record (“CAR”) 143. Then, asked about

treatment after the 2009 episode, he said, “I received

treatment from the same village doctor.” CAR 145. Asked about

treatment after the 2013 episode, he said, “I didn’t receive

any treatment.”

Government counsel confronted petitioner

as follows, “Now you just testified after all three beatings

you received medical attention from a local village

official.” CAR 146. The Petitioner answered, “I received

treatment two times, not three times.”

When Government

counsel persisted, stating, “[Y]ou stated you were treated by

the same village helper who treated you in March 2012 and who

treated you in November 2013,”

the Petitioner replied,

“I said I was treated once by the village doctor.”

Government counsel then said, “Sir, we can replay the tape.”

The IJ then said, “We don’t have to.” The petitioner

clarified that after his first beating, he was treated at a 4 hospital by Dr. J.P. Gupta. Exhibit 3E is a “medical

certificate” reporting that Dr. J.P. Gupta from J.P. Surgical

Hospital treated Fateh Singh for “lash injuries” on November

2, 2009.

The IJ concluded that there was an inconsistency between

the petitioner’s stating that he was twice treated by “a

pharmacist trained medical person” in a “village facility”

and his testimony and an exhibit showing he was treated by

Dr. Gupta at a hospital. CAR 66. Although there might be an

inconsistency, it is also possible that the IJ was led astray

by the questioning of Government counsel, who incorrectly

asserted that the petitioner said he received treatment from

a local village official on three occasions. The petitioner

refuted this incorrect statement of his testimony by

asserting that he was treated once by the village doctor and

once by Dr. Gupta at a hospital, the latter assertion

corroborated by the doctor’s certificate.

With respect to funds, the petitioner testified that the

money used to pay police officers to secure his release from

detention came from people to whom his farming family sold

grains and also from a bank. CAR 159. The petitioner testified 5 that the money “to reach here” came from the sale of land

that was his but was “on my grandfather’s name.” Id. 161.

The IJ concluded that the petitioner “testified

inconsistently that the source of the money that was used to

pay for his alleged release was based upon property owned by

his grandfather who allegedly sold portions of it to acquire

funds used by” the petitioner. CAR 66. The IJ misapprehended

what the petitioner had said. He had testified that the land

sale funds were used “to reach here,” i.e., to enable him to

travel to the United States.

In considering the second of the two alleged

inconsistencies relied on to find the petitioner not

credible, we encounter a threshold matter. With respect to

the source of funds, the argument portion of the Government’s

brief makes no attempt to support the credibility conclusion

on the ground of an alleged inconsistency, arguably

forfeiting any reliance on that ground. For his part, the

petitioner’s brief also makes no mention of the alleged

discrepancy concerning source of funds, an omission that the

Government contends shows he has “waived any challenge to the

agency’s finding.” Br. for Respondent at 18 n.6. The 6 Government cites Ahmed v. Holder,

(2d Cir.

2010), but that decision concerned forfeiture of an entire

“ruling,” not one of multiple bases for a ruling such as lack

of credibility.

Whether or not the omissions from the briefs of both

sides would entitle us to deem an argument forfeited by either

side, we are not required to do so, and we elect to consider

both of the alleged inconsistencies. The matter of the funds

is plainly not an inconsistency providing a valid basis for

an adverse credibility finding. The IJ simply misunderstood

the testimony, an understandable occurrence by a hearing

officer obliged to adjudicate several cases in a single day

and promptly dictate findings. The matter of the medical

treatment is an arguable inconsistency, but rendered

uncertain by the misleading questioning of Government

counsel. Cf. Gao v. BIA,

(2d Cir. 2007) (IJ

improperly adopted assumption in cross-examiner’s question).

Under all the circumstances, we are left with an

insufficient basis to uphold the finding of lack of

credibility, and the case must be remanded for a new hearing.

See Jin Chen v. U.S. Dept. of Justice,

(2d 7 Cir. 2005) (“[W]e will reverse where [an] adverse credibility

determination is based upon . . . an incorrect analysis of

the testimony.”) (internal quotation marks omitted). At the

hearing the details of the source of funds and the providers

of medical treatment can be fairly and fully ascertained for

such relevance, if any, as they might bear on the credibility

of the petitioner’s account of his three episodes of

persecution.

For the foregoing reasons, the petition for review is

GRANTED, ands the case is REMANDED to the BIA so that an IJ

may conduct a new hearing. 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 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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