17-741 Singh v. Sessions BIA Poczter, IJ A205 422 053 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 12th day of October, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SARVAN SINGH, 14 Petitioner, 15 16 v. 17-741 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, 24 P.C., Jackson Heights, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Principal Deputy 27 Assistant Attorney General; 28 Brianne Whelan Cohen, Senior 29 Litigation Counsel; Mona Maria 30 Yousif, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 34 1 UPON DUE CONSIDERATION of this petition for review of a

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Sarvan Singh, a native and citizen of India,

6 seeks review of a March 3, 2017, decision of the BIA affirming

7 a February 12, 2016, decision of an Immigration Judge (“IJ”)

8 denying Singh’s application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Sarvan Singh, No. A 205 422 053 (B.I.A. Mar.

11 3, 2017), aff’g No. A 205 422 053 (Immig. Ct. N.Y. City Feb.

12 12, 2016). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we have reviewed

15 both the BIA’s and the IJ’s decisions. See Yun-Zui Guan v.

16 Gonzales,

(2d Cir. 2005) (per curiam).

17 The standards of review are well established. See 8 U.S.C.

18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

19 66 (2d Cir. 2008) (per curiam) (applying substantial

20 evidence standard to credibility rulings).

21 In making a credibility determination, the agency must

22 “consider[] the totality of the circumstances” and may base

2 1 a finding on the applicant’s “demeanor, candor, or

2 responsiveness, the inherent plausibility of the

3 applicant’s . . . account,” inconsistencies in the

4 applicant’s statements or between his statements and other

5 evidence, and “any other relevant factor.” 8 U.S.C.

6 § 1158(b)(1)(B)(iii); see Xiu Xia Lin,

,

7 166-67. “We defer . . . to an IJ’s credibility

8 determination unless, from the totality of the

9 circumstances, it is plain that no reasonable fact-finder

10 could make such an adverse credibility ruling.” Xiu Xia

11 Lin,

. The inconsistencies among Singh’s

12 statements and his lack of reliable corroboration provide

13 substantial evidence for the adverse credibility

14 determination.

15 As an initial matter, Singh contends that the agency

16 erred in relying on his border interview to assess his

17 credibility. An IJ may rely on statements made at a border

18 interview provided that the interview record is reliable.

19 Ming Zhang v. Holder,

(2d Cir. 2009). The

20 agency reasonably concluded that the record of Singh’s border

21 interview was sufficiently reliable: (1) the record appears

22 to be a verbatim account of the questions asked and Singh’s

3 1 responses; (2) the interviewer asked for details about

2 Singh’s claim of past harm and his political activities;

3 (3) Singh answered all questions posed; and (4) Singh

4 confirmed he understood the Punjabi translator. See

at

5 721-22; Ramsameachire v. Ashcroft,

(2d

6 Cir. 2004).

7 The inconsistencies among Singh’s statements at the

8 border interview, his credible fear interview, and his

9 hearing provide substantial evidence for the agency’s adverse

10 credibility determination because they relate to Singh’s

11 level of political activity and his allegations of past harm.

12 See Xiu Xia Lin,

; Xian Tuan Ye v. Dep’t of

13 Homeland Sec.,

(2d Cir. 2006) (concluding

14 that a material inconsistency concerning alleged mistreatment

15 that formed the basis of the asylum claim was substantial

16 evidence for an adverse credibility determination). First,

17 Singh stated at his border interview that he was targeted

18 because of his father’s affiliation with the party and

19 confirmed that he knew nothing about the Shiromani Akali Dal

20 Amritsar Party. But he stated at his credible fear interview

21 that he spent several months putting up posters at the party’s

22 rallies. And at his hearing, Singh did not mention the

4 1 posters, but testified to attending rallies where he

2 “raise[d] slogans against [the] Congress Party” and served

3 food to participants. Second, Singh stated at his border

4 interview that the police beat him five or six times, but at

5 both his credible fear interview and hearing, he recounted

6 only two incidents of police violence.

7 Singh’s varied explanations for the inconsistencies were

8 not compelling. “A petitioner ‘must do more than offer a

9 plausible explanation for his inconsistent statements to

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

11 finder would be compelled to credit his testimony.’” Sk

12 Shahriair Majidi v. Gonzales,

(2d Cir. 2005)

13 (quoting Zhou Yun Zhang v. INS,

(2d Cir.

14 2004)). The agency was not required to accept Singh’s

15 explanations for his misstatements at his border interview,

16 that he did not remember denying any political activity and

17 that he gave incorrect answers because he was “scared” and

18 his “mind . . . was not working correctly.” See Yun-Zui Guan

19 v. Gonzales,

, 397 n.6 (2d Cir. 2005) (per curiam)

20 (explaining that nervousness during a border interview does

21 not preclude the agency from relying on interview statements

22 if the interview is otherwise reliable). Nor was the IJ

5 1 required to credit Singh’s attempt to differentiate between

2 a party member and a party supporter because he stated at the

3 border interview that he knew nothing about the Shiromani

4 Akali Dal Amritsar Party that he later testified to

5 supporting. See Majidi,

.

6 As these inconsistencies undermined Singh’s credibility,

7 the agency reasonably relied on Singh’s failure to

8 rehabilitate his testimony with reliable corroborating

9 evidence. See Biao Yang v. Gonzales,

(2d

10 Cir. 2007) (per curiam). The IJ reasonably declined to give

11 weight to a non-contemporaneous medical record. Y.C. v.

12 Holder,

(2d Cir. 2013) (“We generally defer

13 to the agency’s evaluation of the weight to be afforded an

14 applicant’s documentary evidence.”). Nor did the agency err

15 in declining to credit letters from Singh’s father and other

16 individuals in India because the authors were not available

17 for cross-examination and Singh’s father was an interested

18 party. See

(deferring to agency’s decision not

19 to credit letter from applicant’s spouse); In re H-L-H- & Z-

20 Y-Z-,

(BIA 2010) (giving diminished

21 weight to letters from relatives because they were from

22 interested witnesses not subject to cross-examination), rev’d

6 1 on other grounds by Hui Lin Huang v. Holder,

(2d

2 Cir. 2012). And Singh did not corroborate the more recent

3 attack on his mother despite being in regular contact with

4 her. See Chuilu Liu v. Holder,

(2d Cir.

5 2009) (noting that it is the alien’s burden to corroborate

6 “without prompting from the IJ”).

7 Given Singh’s inconsistent statements, which go to the

8 heart of his claim, and the lack of reliable corroboration,

9 the “totality of the circumstances” supports the agency’s

10 adverse credibility determination. See Xiu Xia Lin,

. The adverse credibility determination is dispositive

12 of asylum, withholding of removal, and CAT relief because all

13 three claims are based on the same factual predicate. See

14 Paul v. Gonzales,

(2d Cir. 2006).

15 For the foregoing reasons, the petition for review is

16 DENIED.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

7