16-3359 Singh v. Barr BIA Poczter, IJ A205 850 029

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 23rd day of April, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

MANINDER SINGH, Petitioner,

v. 16-3359 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Genet Getachew, Esq., Brooklyn, NY.

FOR RESPONDENT: Jesse Lloyd Busen, 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 GRANTED and the case is REMANDED to the BIA for further

proceedings consistent with this order.

Petitioner Maninder Singh, a citizen of India, seeks

review of a September 2, 2016 decision of the BIA affirming

a December 17, 2014 decision of an Immigration Judge (“IJ”)

denying Singh’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Maninder Singh, No. A205 850 029 (B.I.A. Sept.

2, 2016), aff’g No. A205 850 029 (Immig. Ct. N.Y. City Dec.

17, 2014). We assume the parties’ familiarity with the

underlying facts and procedural history.

Under the circumstances, we have reviewed both the IJ’s

and the BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec.,

(2d

Cir. 2006). The trier of fact may base a credibility

determination on, among other things, “the consistency

between the applicant’s or witness’s written and oral

statements,” the “internal consistency of each such

statement,” and “the consistency of such statements with

other evidence of record.”

(b)(1)(B)(iii).

2 “We defer . . . to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

2008); accord Hong Fei Gao v. Sessions,

(2d

Cir. 2018).

Singh’s application sought to establish past persecution

by detailing a series of incidents in which Singh’s uncle, a

supporter of an opposing political party, repeatedly attacked

Singh in an effort to coerce Singh’s support for the uncle’s

party. In one of these attacks, Singh alleged that his

uncle’s coconspirators had murdered Singh’s sister. Singh

also alleged that his brother has since disappeared and is

presumed to have been kidnapped by Singh’s uncle.

The IJ denied Singh’s application based on an adverse

credibility determination, based in turn on the IJ’s

conclusion that a “central” portion of Singh’s testimony, in

which he attempted to explain his uncle’s role in local

politics, was internally inconsistent and confusing.

Certified Administrative Record (“CAR”) 41.

“When reviewing an IJ’s credibility findings, we afford

particular deference in applying the substantial evidence

standard. This deference is at its highest point where an

3 IJ's credibility determinations are based on observation of

the applicant’s demeanor; but it ebbs where credibility

determinations are based on analysis of testimony. In

reviewing an IJ’s conclusions regarding credibility, we

examine whether the IJ has provided specific, cogent reasons

for the adverse credibility finding and whether those reasons

bear a legitimate nexus to the finding.” Lin Zhong v. U.S.

Dep’t of Justice,

, 116–17 (2d Cir. 2007)

(citations and internal quotation marks omitted). In

particular, “we will reverse when the adverse credibility

determination is based upon . . . an incorrect analysis of

the testimony.” Ramsameachire v. Ashcroft,

(2d Cir. 2004).

The IJ’s finding that Singh “was unable to explain” his

uncle’s position was not supported by substantial evidence.

A review of the hearing transcript reveals that Singh cogently

explained (through an interpreter, no less) that at the time

of the election campaign in question, his uncle was a local

party leader supporting (and allegedly coercing Singh’s

support for) a candidate for Chief Minister of Punjab, while

simultaneously seeking lesser office himself, perhaps in the

hope of someday attaining a higher elected position of his

own. CAR 90-91. Singh explained all this without

4 contradicting himself. The IJ’s confusion appeared to stem

from an assumption that Singh’s uncle was himself running for

Chief Minister of Punjab. But there was nothing inconsistent

about Singh’s statements that his uncle had not “lost” the

election and yet was not Chief Minister. On Singh’s own

telling, Singh’s uncle was running for a different office

while supporting another candidate for Chief Minister in his

capacity as a local party leader.

The IJ’s analysis of that portion of Singh’s testimony

was unsupported by substantial evidence. Moreover, the IJ

described the issue of Singh’s uncle’s role as “central” to

the credibility of Singh’s asylum claim. CAR 41. “Where an

IJ relies on erroneous bases to reach an adverse credibility

determination, and we cannot confidently predict that the IJ

would reach the same conclusion in the absence of these

deficiencies, the IJ’s adverse credibility determination

cannot stand.” Hong Fei Gao,

. In light of

the IJ’s statement that the problems with Singh’s story

relating to his uncle’s position were “central” to her

determination, we cannot “confidently predict” that the IJ

would reach the same conclusion in the absence of her error.

Our conclusion is reinforced by two other errors in the

IJ’s adverse credibility determination: In addition to the

5 supposed inconsistency discussed above, the adverse

credibility determination was also based on three supposed

inconsistencies in Singh’s written and oral submissions.

First, the agency relied on Singh’s omission from his

application of the fact that he has a brother and that his

brother was kidnapped. Second, the agency relied on the

omission of Singh’s brother’s kidnapping from his parents’

written submission. Third, the agency relied on the omission

of Singh’s sister’s murder from a letter submitted by a local

leader of Singh’s village.

The IJ’s reliance on the latter two omissions is suspect

following our intervening decision in Hong Fei Gao, in which

we held that “[a]lthough an omission by a third party may

form a basis for an adverse credibility determination, under

these circumstances — where a third party’s omission creates

no inconsistency with an applicant’s own statements — an

applicant’s failure to explain third-party omissions is less

probative of credibility than an applicant’s failure to

explain his or her own omissions.”

(citation

omitted). Nor do those omissions tend to show that Singh

“fabricated [his] claims when considered in light of the

totality of the circumstances and in the context of the record

as a whole.”

. Most importantly, for our purposes,

6 in light of the IJ’s erroneous analysis of Singh’s testimony

about his uncle’s role and the effect of our intervening

decision in Hong Fei Gao on the weight to be placed on third-

party omissions, we “cannot confidently predict that the IJ

would reach the same conclusion in the absence of these

deficiencies” and developments.

(quotation

omitted). Accordingly, “the IJ’s adverse credibility

determination cannot stand.”

Because that adverse

credibility determination was the sole basis for the IJ and

BIA’s decisions, we will vacate both decisions in their

entirety.

For the foregoing reasons, the petition for review is

GRANTED, the decisions of the BIA and IJ are VACATED, and the

case is remanded to the BIA for further proceedings, including

remand to the IJ, as may be necessary in these circumstances.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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