18-372 Singh v. Barr BIA Hom, IJ A205 421 884 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 22nd day of January, two thousand twenty. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 AMANPREET SINGH, 14 15 Petitioner, 16 17 v. 18-372 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 26 New York, NY. 27 28 FOR RESPONDENT: Joseph H. Hunt, Assistant 29 Attorney General; Bernard A. 30 Joseph, Senior Litigation Counsel; 31 Jonathan K. Ross, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is GRANTED.

9 Petitioner Amanpreet Singh, a native and citizen of

10 India, seeks review of a January 11, 2018, decision of the

11 BIA affirming an April 5, 2017, decision of an Immigration

12 Judge (“IJ”) denying his application for asylum, withholding

13 of removal, and relief under the Convention Against Torture

14 (“CAT”). In re Singh, No. A 205 421 884 (B.I.A. Jan. 11,

15 2018), aff’g No. A 205 421 884 (Immig. Ct. N.Y. City Apr. 5,

16 2017). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 We have reviewed the IJ’s decision as modified by the

19 BIA; i.e., minus the IJ’s finding that even assuming

20 credibility, Singh did not establish eligibility for asylum

21 and related relief. See Xue Hong Hang v. U.S. Dep’t of

22 Justice,

(2d Cir. 2005). The standards of

23 review are well established. See

(b)(4)(B);

2 1 Hong Fei Gao v. Sessions,

(2d Cir. 2018)

2 (reviewing adverse credibility determination for substantial

3 evidence). “Considering the totality of the circumstances,

4 and all relevant factors, a trier of fact may base a

5 credibility determination on . . . the consistency between

6 the applicant’s . . . written and oral statements . . . , the

7 internal consistency of each such statement, [and] the

8 consistency of such statements with other evidence of record

9 . . . without regard to whether an inconsistency, inaccuracy,

10 or falsehood goes to the heart of the applicant’s claim . .

11 . .”

(b)(1)(B)(iii). We conclude that the

12 agency has not identified substantial evidence to support the

13 adverse credibility determination.

14 The agency based its adverse credibility determination

15 on two claimed inconsistencies. First, the agency identified

16 one inconsistency between Singh’s testimony that he was

17 treated with painkillers for his injuries and a medical report

18 that indicated that he received painkillers, antibiotics, and

19 intravenous fluids. Second, while Singh testified he

20 informed S. Narinder Singh, a leader of the political party

21 Singh belonged to, about the two attacks, the agency relied

3 1 on the fact that a letter from S. Narinder Singh did not

2 specifically mention his attacks by members of a rival party,

3 instead it only confirmed Singh’s party membership and that

4 Singh had been persecuted by a rival political party. We

5 have cautioned against putting excessive weight on a third-

6 party’s omissions, particularly where, as here, the third

7 party’s statement does not contradict the applicant’s

8 statements. See Hong Fei Gao,

(“Although an

9 omission by a third party may form a basis for an adverse

10 credibility determination . . . under these circumstances—

11 where a third party’s omission creates no inconsistency with

12 an applicant’s own statements—an applicant’s failure to

13 explain third-party omissions is less probative of

14 credibility than an applicant’s failure to explain his or her

15 own omissions.”).

16 Given the agency’s error in relying on this finding, we

17 conclude that remand is necessary because the single

18 inconsistency regarding Singh’s medical treatment does not,

19 under the totality of the circumstances, constitute

20 substantial evidence for an adverse credibility

21 determination. See

(b)(1)(B)(iii); Hong Fei

4 1 Gao,

; cf. Xiu Xia Lin v. Mukasey,

(2d Cir. 2008) (“an IJ may rely on any inconsistency

3 or omission in making an adverse credibility determination as

4 long as the ‘totality of the circumstances’ establishes that

5 an asylum applicant is not credible.” (quoting

6 § 1158(b)(1)(B)(iii))). Because the adverse credibility

7 determination was the sole basis for the agency’s denial of

8 Singh’s claim of past persecution, we remand for further

9 consideration of whether Singh met his burden of proof for

10 past persecution, such that he is entitled to a presumption

11 of future persecution. See

(b)(1).

12 For the foregoing reasons, the petition for review is

13 GRANTED, the BIA’s decision is VACATED, and the case is

14 REMANDED for further proceedings consistent with this

15 order.

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

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