17-2931 Singh v. Barr BIA Kolbe, IJ A202 065 218 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 22nd day of November, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges. _____________________________________

MAKHAN SINGH, Petitioner,

v. 17-2931 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jaspreet Singh, Esq., Jackson Heights, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel; Shahrzad Baghai, Trial 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 DENIED.

Petitioner Makhan Singh, a native and citizen of India,

seeks review of an August 23, 2017, decision of the BIA

affirming a January 20, 2017, decision of an Immigration Judge

(“IJ”) denying asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Makhan

Singh, No. A202 065 218 (B.I.A. Aug. 23, 2017), aff’g No.

A202 065 218 (Immig. Ct. N.Y. City Jan. 20, 2017). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

Because the BIA agreed with the IJ and “emphasize[d]

particular aspects of that decision,” we have reviewed both

decisions. Yun-Zui Guan v. Gonzales,

(2d

Cir. 2005). The applicable standards of review are well

established. See

(b)(4)(B); see also Chuilu

Liu v. Holder,

(2d Cir. 2009) (reviewing

factual findings underlying burden of proof determinations

under the substantial evidence standard); Yanqin Weng v.

Holder,

(2d Cir. 2009) (reviewing questions

2 of law to undisputed fact de novo). The agency did not err

in finding that Singh failed to satisfy his burden of proof

given problems with his testimony and a lack of reliable

corroborating evidence that Congress Party members in India

beat him and threatened him and his father because they were

members of the Akali Dal Mann Party (“Mann Party”).

“The testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but

only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that the

applicant is a refugee.”

(b)(1)(B)(ii); see

also Chuilu Liu,

. “In determining whether

the applicant has met [his] burden, the trier of fact may

weigh the credible testimony along with other evidence of

record. Where the trier of fact determines that the

applicant should provide evidence that corroborates otherwise

credible testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence.”

(b)(1)(B)(ii). “No

court shall reverse a determination made by a trier of fact

with respect to the availability of corroborating evidence .

3 . . unless the court finds . . . that a reasonable trier of

fact is compelled to conclude that such corroborating

evidence is unavailable.”

(b)(4).

The IJ did not err in declining to credit Singh’s

evidence of his alleged persecution and in finding it

insufficient to meet his burden. The medical certificate

Singh provided to corroborate an injury was not

contemporaneous with treatment and had no foundation given

Singh’s testimony that he threw away the mailing envelope and

his admission that he did not know how the document was

created or what records the author relied on. See Y.C. v.

Holder,

(2d Cir. 2013) (“We defer to the

agency’s determination of the weight afforded to an alien’s

documentary evidence.”); see also In re H-L-H- & Z-Y-Z-,

, 214 n.5 (BIA 2010) (noting that the “failure

to attempt to prove the authenticity of a document through [

] or any other means is significant”),

overruled on other grounds by Hui Lin Huang v. Holder,

(2d Cir. 2012).

Nor was the IJ required to credit the evidence Singh

submitted to corroborate his claim that Congress Party

members harmed him, which consisted of statements from the

4 Mann Party president, a village leader, his mother, his uncle,

and his neighbor. The statements were prepared for Singh’s

removal proceedings, they contained some nearly identical

language, Singh’s mother was an interested witness, and the

authors were not available for cross-examination. See Y.C.,

(deferring to agency decision to afford little

weight to petitioner’s husband’s letter because it was

unsworn and from an interested witness); see also In re H-L-

H- & Z-Y-Z-,

(finding letters from

friends and family insufficient to support alien’s claims

because the authors were interested witnesses not subject to

cross-examination), overruled on other grounds by Hui Lin

Huang,

; Surinder Singh v. BIA,

(2d Cir. 2006) (determining that “the nearly

identical language in the written affidavits allegedly

provided by different people” was a proper consideration in

an adverse credibility determination). Further, a Mann Party

document, which confirmed Singh’s membership in the party,

did not contain any details of Singh’s alleged persecution

and contains a confusing postscript implying that the letter

was a template that could be forged.

5 The IJ reasonably required corroboration given Singh’s

nonresponsive testimony about whether he had evidence of his

father’s political participation, and his inconsistent

testimony about when his father went missing. See

(b)(1)(B)(ii); see also Chuilu Liu,

-

97. The IJ properly identified the missing evidence. See

Chuilu Liu,

. Singh testified that his

father was a member of the Mann Party, influenced his

political work, and was also threatened by the Congress Party,

but he did not produce a letter from his father. The agency

was not required to credit his explanation that his father

could not provide a letter given Singh’s inconsistent

testimony about when his father went missing. See

(b)(4)(B); Majidi v. Gonzales,

(2d Cir.

2005) (“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.” (internal quotation marks

omitted)). And despite submitting a letter from the Mann

Party about his own membership, he did not provide similar

information about his father’s membership. The IJ did not

err in finding this evidence reasonably available given that,

6 a month prior to his hearing, Singh received a membership

confirmation letter from the Mann Party that his father had

arranged. See

(b)(4).

Given the lack of persuasive and credible testimony and

reliable corroboration, the agency did not err in finding

that Singh failed to satisfy his burden of establishing past

persecution on account of his political opinion. See

(b)(1)(B)(ii); Chuilu Liu,

.

That finding is dispositive of asylum, withholding of

removal, and CAT relief because all three claims 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, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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