17-2977 Singh v. Barr BIA Loprest, IJ A206 088 347 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 6th day of January, two thousand twenty. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JATINDER SINGH, 14 Petitioner, 15 v. 17-2977 16 NAC 17 WILLIAM P. BARR, UNITED STATES 18 ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, 23 P.C., Jackson Heights, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant 26 Attorney General; Leslie McKay, 27 Senior Litigation Counsel; 28 Christina P. Greer, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 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 Jatinder Singh, a native and citizen of India,

6 seeks review of an August 24, 2017, decision of the BIA

7 affirming a December 1, 2016, decision of an Immigration Judge

8 (“IJ”) denying Singh’s application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Jatinder Singh, No. A 206 088 347 (B.I.A. Aug.

11 24, 2017), aff’g No. A 206 088 347 (Immig. Ct. N.Y. City Dec.

12 1, 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 the IJ’s decision minus the findings the BIA declined to rely

16 on. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). The applicable standards of review

18 are well established. See

(b)(4)(B); Hong Fei

19 Gao v. Sessions,

(2d Cir. 2018) (reviewing

20 adverse credibility determination under a substantial

21 evidence standard); Gjerjaj v. Holder,

(2d

2 1 Cir. 2012) (reviewing constitutional claims de novo).

2 Adverse Credibility Determination

3 The governing REAL ID Act credibility standard provides

4 as follows:

5 Considering the totality of the circumstances, and 6 all relevant factors, a trier of fact may base a 7 credibility determination on the demeanor, candor, 8 or responsiveness of the applicant or witness, . . 9 . the consistency between the applicant’s or 10 witness’s written and oral statements . . . , the 11 internal consistency of each such statement, the 12 consistency of such statements with other evidence 13 of record . . . , and any inaccuracies or falsehoods 14 in such statements, . . . or any other relevant 15 factor. 16 17

(b)(1)(B)(iii). “We defer . . . to an IJ’s

18 credibility determination unless . . . it is plain that no

19 reasonable fact-finder could make such an adverse credibility

20 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

21 2008); accord Hong Fei Gao,

. Substantial

22 evidence supports the agency’s determination that Singh’s

23 claim of persecution by the Congress Party on account of his

24 membership in the Akali Dal Mann political party was not

25 credible.

26 First, Singh has waived any challenge to the IJ’s

27 findings that his testimony was internally inconsistent and

3 1 inconsistent with his medical report regarding his injuries,

2 that there were discrepancies between his testimony and

3 application regarding who accompanied him to the police

4 station, and that his demeanor undermined his credibility.

5 See Norton v. Sam’s Club,

(2d Cir. 1998)

6 (“Issues not sufficiently argued in the briefs are considered

7 waived and normally will not be addressed on appeal.”).

8 However, even if not waived, these findings provide

9 substantial support for the adverse credibility

10 determination. First, Singh’s testimony was internally

11 inconsistent and inconsistent with the medical certificate

12 regarding whether he sustained visible injuries. Second,

13 Singh’s application omits that a village council member and

14 his neighbor accompanied him to the police station. Third,

15 we defer to the IJ’s demeanor finding, which is supported by

16 Singh’s non-responsive answers on direct examination. See

17 Jin Chen v. U.S. Dep’t of Justice,

(2d Cir.

18 2005) (granting deference to credibility findings based on an

19 applicant’s demeanor, “in recognition of the fact that the

20 IJ’s ability to observe the witness’s demeanor places her in

21 the best position to evaluate whether apparent problems in

4 1 the witness’s testimony suggest a lack of credibility or,

2 rather, can be attributed to an innocent cause such as

3 difficulty understanding the question”); see also Tu Lin v.

4 Gonzales,

(2d Cir. 2006) (“Evasiveness

5 is . . . one of the many outward signs a fact-finder may

6 consider in evaluating demeanor and in making an assessment

7 of credibility.”).

8 Additionally, the agency reasonably concluded that

9 Singh’s documentary evidence did not rehabilitate his

10 credibility. See Biao Yang v. Gonzales,

, 273

11 (2d Cir. 2007) (“An applicant’s failure to corroborate his .

12 . . testimony may bear on credibility, because the absence of

13 corroboration in general makes an applicant unable to

14 rehabilitate testimony that has already been called into

15 question”). It was reasonable for the IJ to give diminished

16 weight to Singh’s 2016 medical certificate because it was not

17 prepared contemporaneously with his 2013 hospitalization but

18 rather to support his application. See Y.C. v. Holder, 741

(2d Cir. 2013) (“We generally defer to the

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

21 applicant’s documentary evidence”). The IJ also did not err

5 1 in giving diminished weight to affidavits from individuals

2 who were not subject to cross-examination. See Matter of H-

3 L-H- & Z-Y-Z-,

(BIA 2010) (giving

4 diminished weight to letters from relatives because they were

5 from interested witnesses not subject to cross-examination),

6 rev’d on other grounds by Hui Lin Huang v. Holder,

(2d Cir. 2012). Furthermore, as noted by the IJ, Singh

8 did not produce any country conditions evidence that Congress

9 Party members are targeting members of the Akali Dal Mann or

10 forcing them to join the Congress Party.

11 Given the discrepancies among Singh’s testimony,

12 application, and medical document, Singh’s demeanor, and lack

13 of reliable corroboration, substantial evidence supports the

14 adverse credibility determination. See 8 U.S.C.

15 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. Because

16 Singh’s claims were all based on the same factual predicate,

17 the adverse credibility determination is dispositive of

18 asylum, withholding of removal, and CAT relief. See Paul v.

19 Gonzales,

(2d Cir. 2006).

20 Due Process Claim

21 Singh argues that his due process rights were violated

6 1 by the attorney for the Department of Homeland Security

2 (“DHS”) interrupting his testimony during direct examination.

3 “To establish a violation of due process, an alien must show

4 that []he was denied a full and fair opportunity to present

5 h[is] claims,” Burger v. Gonzales,

(2d Cir.

6 2007) (internal quotation marks and citations omitted), and

7 he must establish prejudice, Miller v. Mukasey,

,

8 164 (2d Cir. 2008). Singh has shown neither. He testified

9 at length at the hearing, and although the DHS attorney may

10 have interrupted the flow of his testimony, the interruptions

11 did not cause the non-responsive answers but instead

12 highlighted them for the IJ and put Singh on notice of

13 problems with his testimony.

14 For the foregoing reasons, the petition for review is

15 DENIED.

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

7