18-2061 Singh v. Barr BIA Criss, IJ A208 179 455

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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 14th day of April, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 LOVEJED SINGH, 14 Petitioner, 15 16 v. 18-2061 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Esq., Richmond Hill, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Kiley Kane, Senior 1 Litigation Counsel; Judith R. 2 O’Sullivan, Trial Attorney, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a Board

7 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

8 ADJUDGED, AND DECREED that the petition for review is DISMISSED

9 in part and DENIED in part.

10 Petitioner Lovejed Singh, a native and citizen of India,

11 seeks review of a June 29, 2018, decision of the BIA affirming

12 a July 28, 2017, decision of an Immigration Judge (“IJ”) denying

13 Singh’s application for asylum, withholding of removal, and

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

15 Lovejed Singh, No. A 208 179 455 (B.I.A. Jun. 29, 2018), aff’g

16 No. A 208 179 455 (Immig. Ct. N.Y. City Jul. 28, 2017). We assume

17 the parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we have reviewed the

20 IJ’s decision as modified by the BIA, that is, minus the findings

21 the BIA declined to rely on. See Xue Hong Yang v. U.S. Dep’t

22 of Justice,

(2d Cir. 2005). Accordingly, we

23 only address the agency’s finding of the asylum claim as untimely

24 and the adverse credibility determination. 2 1 I. Asylum: One-Year Filing Deadline

2 An alien is ineligible for asylum “unless the alien

3 demonstrates by clear and convincing evidence that the

4 application has been filed within 1 year after the date of the

5 alien’s arrival in the United States.” 8 U.S.C.

6 § 1158(a)(2)(B). An application may be considered outside the

7 one-year deadline “if the alien demonstrates . . . the existence

8 of changed circumstances which materially affect the applicant’s

9 eligibility for asylum or extraordinary circumstances relating

10 to the delay,” id. § 1158(a)(2)(D), and the application is filed

11 “within a reasonable period given those circumstances,” 8 C.F.R.

12 § 1208.4(a)(4)(ii), (a)(5).

13 Our jurisdiction to review the agency’s findings regarding

14 the timeliness of an asylum application and the circumstances

15 excusing the untimeliness is limited to constitutional claims

16 or questions of law. See

(a)(3), 1252(a)(2)(D).

17 When assessing jurisdiction, we “study the arguments asserted

18 . . . to determine, regardless of the rhetoric employed in the

19 petition, whether it merely quarrels over the correctness of

20 the factual findings or justification for the discretionary

21 choices, in which case the court would lack jurisdiction or

3 1 whether it instead raises a ‘constitutional claim’ or ‘question

2 of law,’ in which case the court could exercise jurisdiction

3 to review those particular issues.” Xiao Ji Chen v. U.S. Dep’t

4 of Justice,

(2d Cir. 2006). For jurisdiction

5 to attach, such claims must be colorable. Barco-Sandoval v.

6 Gonzales,

, 40–41 (2d Cir. 2008). We review

7 constitutional claims and questions of law de novo. Pierre v.

8 Holder,

(2d Cir. 2009).

9 Singh concedes that his application was untimely, but he

10 argues that his mental health issues excused his untimely filing.

11 Specifically, he states that the agency ignored the

12 psychological evaluation in the record that supports his claim

13 that his memory issues impacted his filing. The IJ and BIA,

14 however, both explicitly referenced the evaluation when finding

15 that there was insufficient evidence that Singh’s mental health

16 issues prevented timely filing. Singh, then, “merely quarrels

17 over the correctness of the factual findings or justification

18 for the discretionary choices,” which we do not have jurisdiction

19 to review. Xiao Ji Chen,

. Accordingly, we

20 dismiss the petition as to asylum. Moreover, as discussed below

4 1 the agency’s alternative adverse credibility determination is

2 supported by substantial evidence.

3 II. Adverse Credibility

4 We review the agency’s adverse credibility determination

5 under a substantial evidence standard. See 8 U.S.C.

6 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

(2d

7 Cir. 2018). “Considering the totality of the circumstances, and

8 all relevant factors, a trier of fact may base a credibility

9 determination on the demeanor, candor, or responsiveness of the

10 applicant . . . , the consistency between the applicant’s . .

11 . written and oral statements . . . , the internal consistency

12 of each such statement, [and] the consistency of such statements

13 with other evidence of record . . . without regard to whether

14 an inconsistency, inaccuracy, or falsehood goes to the heart

15 of the applicant’s claim . . . .” 8 U.S.C.

16 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

17 determination unless, from the totality of the circumstances,

18 it is plain that no reasonable fact-finder could make such an

19 adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

.

5 1 The adverse credibility determination is supported by

2 substantial evidence.

3 Singh alleged that he joined the Simranjit Singh Mann Party

4 in January 2015, and members of an opposition party beat him

5 once in February 2015 and threatened him twice. As the agency

6 found, Singh’s statements that he did not report his beating

7 or threats to the police were inconsistent with a letter he

8 submitted, in which his neighbor alleged that he was with Singh

9 whenever he made reports to the police. Singh did not have a

10 compelling explanation for the discrepancy, stating only that

11 he did not prepare his neighbor’s letter. See Majidi v.

12 Gonzales,

(2d Cir. 2005) (“A petitioner must

13 do more than offer a plausible explanation for his inconsistent

14 statements to secure relief; he must demonstrate that a

15 reasonable fact-finder would be compelled to credit his

16 testimony.” (internal quotation marks omitted)).

17 Further, the agency’s demeanor finding bolsters the adverse

18 credibility determination. “We give particular deference to

19 credibility determinations that are based on the adjudicator’s

20 observation of the applicant’s demeanor, in recognition of the

21 fact that the IJ’s ability to observe the witness’s demeanor

6 1 places h[im] in the best position to evaluate whether apparent

2 problems in the witness’s testimony suggest a lack of credibility

3 or, rather, can be attributed to an innocent cause such as

4 difficulty understanding the question.” Jin Chen v. U.S. Dep’t

5 of Justice,

(2d Cir. 2005). The record also

6 supports the IJ’s conclusion that Singh’s testimony lacked

7 detail: Singh gave vague answers about what his party did or

8 what its agenda was, stating that he joined because the party

9 was “excellent” and that it wanted to keep people off drugs and

10 did “excellent work,” and Singh’s allegation that that he would

11 be killed because of his party membership was not supported by

12 any examples or details other than his own single beating.

13 Because of the inconsistency and the demeanor finding, the

14 IJ reasonably determined that Singh’s credibility was in

15 question. See

(b)(1)(B)(iii). The IJ also

16 properly relied on Singh’s failure to rehabilitate his testimony

17 with reliable objective corroboration of his injuries and

18 medical treatment, as the letter Singh submitted from his doctor

19 was unauthenticated, vague, and not contemporaneous with his

20 treatment. See Biao Yang v. Gonzales,

(2d Cir.

21 2007) (“An applicant’s failure to corroborate his or her

7 1 testimony may bear on credibility, because the absence of

2 corroboration in general makes an applicant unable to

3 rehabilitate testimony that has already been called into

4 question.”); see also Y.C. v. Holder,

(2d Cir.

5 2013) (“We generally defer to the agency’s evaluation of the

6 weight to be afforded an applicant’s documentary evidence.”);

7 see also In re H-L-H- & Z-Y-Z-,

, 214 n.5,

8 215 (BIA 2010) (finding that letters from friends and family

9 were insufficient to provide substantial support for claims

10 because they were from interested witnesses not subject to

11 cross-examination and noting that the “failure to attempt to

12 prove the authenticity of a document through [

]

13 or any other means is significant”), overruled on other grounds

14 by Hui Lin Huang v. Holder,

(2d Cir. 2012).

15 Given the inconsistency between Singh’s testimony and his

16 neighbor’s, which relates to Singh’s only allegation of past

17 harm, the deference due to the IJ’s demeanor finding, and the

18 lack of reliable objective corroboration, the agency’s adverse

19 credibility determination is supported by substantial evidence.

20 See Xiu Xia Lin,

. That determination is

21 dispositive of asylum, withholding of removal, and CAT relief

8 1 because all three claims are based on the same factual predicate.

2 See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DISMISSED in part and DENIED in remaining part. All pending

5 motions and applications are DENIED and stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

9