18-1168 Singh v. Barr BIA Kolbe, IJ A202 064 095 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 10th day of August, two thousand twenty.

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

RAVINDER SINGH, Petitioner,

v. 18-1168 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Natasha Mallhi, Esq., New York, NY.

FOR RESPONDENT: Gregory Darrel Mack, 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, the decision of the BIA is VACATED, and the case

is REMANDED to the BIA for further proceedings consistent

with this order.

Petitioner Ravinder Singh, a citizen of India, seeks

review of an April 6, 2018, decision of the BIA affirming a

June 8, 2017, 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

Ravinder Singh, No. A 202 064 095 (B.I.A. Apr. 6, 2018), aff’g

No. A 202 064 095 (Immig. Ct. N.Y. City June 8, 2017). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

Singh’s application sought to establish past persecution

by detailing three incidents during which members of the Sikh

religion attacked him because of his membership in a religious

sect known as Dera Sacha Sauda. The IJ denied Singh’s

application in its entirety on the basis of an adverse

credibility determination, which in turn was based on three

inconsistencies in Singh’s testimony and an assessment of his

2 demeanor. We have reviewed the IJ’s decision as modified and

supplemented by the BIA, which adopted and affirmed that

decision but limited its discussion to the IJ’s adverse

credibility determination. See Xue Hong Yang v. U.S. Dep’t

of Justice,

(2d Cir. 2005); Yan Chen v.

Gonzales,

(2d Cir. 2005); Stanley v.

Mukasey,

(2d Cir. 2008) (reviewing, in

similar circumstances, only those portions of the IJ’s

reasoning that the BIA mentioned in adopting and affirming

the IJ decision).

“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). The trier of fact may consider, among

other factors, “the demeanor, candor, or responsiveness of

the applicant,” the consistency of the applicant’s “written

and oral statements,” and “the consistency of such statements

with other evidence of record.”

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

3 The IJ based her adverse credibility determination in

part on her assessment of Singh’s demeanor. According to the

IJ, when Singh testified about a January 20, 2015 attack, “he

provided a long monologue of those events and gave the

impression of a rehearsed description of events. [Singh] did

not wait for counsel’s questions to elicit the details of

what, if credible, would have been a terrifically difficult

experience, but rather provided a detailed rehearsed

monologue which the Court found unconvincing.” Certified

Administrative Record (“CAR”) 31.

As a general matter, the mere fact that an applicant

appears to have prepared to answer questions in detail at his

or her removal proceeding is not a basis to doubt that

applicant’s credibility. Thus, while we will defer to an

adverse credibility determination supported by an IJ’s

assessment that an applicant’s testimony appears “rehearsed,”

we will do so only where that assessment is paired with

something more — for example, “vague” and “non-responsive”

answers, Yingsheng Zheng v. Holder,

(2d

Cir. 2012), hesitancy indicating that the applicant is

following a “poorly rehearsed script,” Xiu Qin Yu v. Holder,

(2d Cir. 2009) (emphasis added), or

4 “evasive[ness],” Bin Xun Chen v. Holder,

(2d Cir. 2014); Lei Ye v. Holder,

(2d

Cir. 2013). Where, by contrast, “[t]he entirety of the

demeanor finding is that [the applicant’s] testimony appeared

to be rehearsed to reflect the recitation of a story that she

had learned, rather than real life events,” without further

support, we have declined to defer to the IJ’s credibility

assessment. Yingshi Li v. Sessions,

, 55 (2d

Cir. 2018) (internal quotation marks omitted).

Here, the “monologue” that the IJ found too “detailed”

and “rehearsed” to be credible took up no more than a page’s

worth of the hearing transcript, and was prompted by a request

that Singh “explain in detail what happened.” CAR 99.

Absent further support, no reasonable factfinder could base

an adverse credibility determination on the impression that

an applicant has done what any reasonable person in removal

proceedings would do: namely, prepare for questioning at a

potentially life-altering hearing.

The IJ also based her adverse credibility determination

on three supposed inconsistencies in Singh’s testimony. Our

review of such a determination is deferential, as we have

explained; however, “although IJs may rely on non-material

5 omissions and inconsistencies, not all omissions and

inconsistencies will deserve the same weight. A trivial

inconsistency or omission that has no tendency to suggest a

petitioner fabricated his or her claim will not support an

adverse credibility determination.” Hong Fei Gao,

.

At least two of the inconsistencies cited by the IJ are

too trivial to support an adverse credibility determination.

First, Singh stated in his initial application that a January

31, 2014 attack ended only when, “[s]eeing [his] coworker

coming, [his assailants] ran away.” CAR 176. Later, Singh

testified that as his coworker arrived on the scene of the

attack, the coworker called to “other men,” and that this was

what made the assailants run away. CAR 128. Second, Singh

wrote in his application that after that attack, he fled to

his “uncle place [sic]” in Delhi for six months. CAR 176.

Later, both Singh’s testimony and his uncle’s statement

indicated that the house in which Singh stayed during that

period was actually owned by his uncle’s friend. Each of

these supposed inconsistencies is so trivial that neither has

any tendency to suggest that Singh fabricated his claim, Hong

Fei Gao,

, still less in light of Singh’s

6 reliance on an interpreter, see Gurung v. Barr,

(2d Cir. 2019). Accordingly, neither of those

inconsistencies may properly support an adverse credibility

determination.

The third inconsistency cited by the IJ concerned Singh’s

description of the first attack he suffered. In his

application, Singh wrote that four men “pushed [him] hard”

and that he “got a small nick on his lip,” CAR 176, but he

later testified that his attackers pushed, punched, and

kicked him for several minutes.

We need not decide whether this last inconsistency was

sufficient to support an adverse credibility determination

because the IJ stated that “any one of” the factors on which

she based that determination — the demeanor assessment and

the three inconsistencies — “would be insufficient to doubt

[Singh’s] credibility as a whole.” CAR 31. Because three

of those four factors should not have been included in the

credibility assessment to begin with, we are left with only

one, along with the IJ’s express determination that she would

not have reached an adverse credibility determination on the

basis of that factor alone. It is therefore appropriate to

vacate the adverse credibility determination and to proceed

7 as though “no adverse credibility determination [was]

explicitly made.”

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

As an alternative ground for denying Singh’s applications

for asylum, withholding of removal, and CAT relief, the IJ

also found that even assuming Singh had presented a credible

claim of past persecution, the Department of Homeland

Security had successfully rebutted any presumption of a well-

founded fear of future persecution. Because the BIA did not

address any of these alternative grounds in its decision, we

will remand to the BIA so that it may do so in the first

instance.

For the foregoing reasons, the petition for review is

GRANTED, the order of the BIA is VACATED, and the case is

REMANDED to the BIA for further proceedings consistent with

this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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