18-1493 Singh v. Barr BIA Schoppert, IJ A200 236 190 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 26th day of August, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 BALWINDER SINGH, 15 Petitioner, 16 17 v. 18-1493 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 25 New York, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Ernesto H. 29 Molina, Jr., Deputy Director; 1 Nancy N. Safavi, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 6 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

7 AND DECREED that this petition for review of a decision of

8 the Board of Immigration Appeals (“BIA”) is DENIED.

9 Petitioner Balwinder Singh, a native and citizen of

10 India, seeks review of an April 26, 2018, decision of the BIA

11 affirming a July 5, 2017 decision of an Immigration Judge

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

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Balwinder Singh, No. A200 236 190 (B.I.A.

15 Apr. 26, 2018), aff’g No. A200 236 190 (Immig. Ct. N.Y. City

16 Jul. 5, 2017). We assume the parties’ familiarity with the

17 underlying facts and procedural history.

18 We review the agency’s adverse credibility determination

19 for substantial evidence.

(b)(4)(B). Under

20 the circumstances of this case, we review the IJ’s decision

21 as modified by the BIA. That is, we need not consider the

22 IJ’s discussion of purported inconsistencies in Singh’s

23 testimony about his arrest record because the BIA did not

24 rely on that ground in affirming the adverse credibility

25 determination. See Hong Fei Gao v. Sessions,

, 76

2 1 (2d Cir. 2018).

2 “Considering the totality of the circumstances, and all

3 relevant factors, a trier of fact may base a credibility

4 determination on . . . the consistency between the applicant’s

5 or witness’s written and oral statements . . . , without

6 regard to whether an inconsistency, inaccuracy, or falsehood

7 goes to the heart of the applicant’s claim, or any other

8 relevant factor.”

(b)(1)(B)(iii). “We defer

9 . . . to an IJ’s credibility determination unless, from the

10 totality of the circumstances, it is plain that no reasonable

11 fact-finder could make such an adverse credibility ruling.”

12 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

13 accord Hong Fei Gao,

.

14 Here, substantial evidence supports the agency’s

15 determination that Singh was not credible as to his claim

16 that police and members of a rival political party detained

17 and beat him because of his membership in the political party

18 Shiromani Akali Dal Amritsar (“SADA”). The BIA properly

19 relied on the inconsistency between Singh’s statements at his

20 initial credible fear interview and his subsequent asylum

21 application about whether SADA seeks to establish an

22 independent Sikh state. At the credible fear interview, Singh

3 1 stated that SADA’s leader “does not want a separate state”

2 and asserted that articles suggesting the contrary were “just

3 rumors.” However, in his subsequent written application for

4 asylum and withholding of removal, Singh stated that SADA

5 demands “an independent homeland for the Sikhs called

6 Khalistan.”

7 When the IJ confronted Singh with this inconsistency,

8 Singh testified that he told the asylum officer at the

9 credible fear interview that SADA’s leader “demands a

10 separate state, but this separate state cannot be established

11 now.” But the interview record—which reflects that Singh

12 unequivocally denied that SADA’s leader seeks a separate

13 state—does not support that explanation. Further, at the

14 beginning of the interview, the asylum officer informed Singh

15 of the importance of telling the truth and that his statements

16 could be used in future immigration proceedings. Thus, the

17 agency was not required to accept Singh’s explanation for the

18 inconsistency. See Majidi v. Gonzales,

(2d

19 Cir. 2005) (“A petitioner must do more than offer a plausible

20 explanation for his inconsistent statements to secure relief;

21 he must demonstrate that a reasonable fact-finder would be

22 compelled to credit his testimony.” (internal quotation marks

4 1 omitted)).

2 Contrary to Singh’s argument that this inconsistency

3 about SADA’s goals was minor, his membership in SADA was the

4 alleged motive for the purported attacks against him and the

5 basis for his political opinion claim. Cf. Xian Tuan Ye v.

6 Dep’t of Homeland Sec.,

(2d Cir. 2006)

7 (holding, in a pre-REAL ID Act case, that an inconsistency

8 concerning the basis of an applicant’s asylum claim is

9 substantial evidence of adverse credibility). “[E]ven a

10 single inconsistency might preclude an alien from showing

11 that an IJ was compelled to find him credible,” Likai Gao v.

12 Barr, No. 18-358,

, at *4 n.8 (2d Cir. July

13 28, 2020), and the IJ may rely on such an inconsistency

14 “without regard to whether [it] . . . goes to the heart of

15 the applicant’s claim,”

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

16 while a “trivial inconsistency or omission that has no

17 tendency to suggest a petitioner fabricated his or her claim

18 will not support an adverse credibility determination,” Hong

19 Fei Gao,

, given the “totality of the

20 circumstances” here, we defer to the agency’s credibility

21 determination, Likai Gao,

, at *4; see also

22 Xiu Xia Lin,

.

5 1 Moreover, the agency reasonably determined that Singh

2 did not rehabilitate his credibility with reliable

3 corroborating evidence. The IJ did not err in giving

4 diminished weight to affidavits from Singh’s father, his

5 wife, and an elected official from his village because the

6 authors were not subject to cross-examination and Singh’s

7 father was an interested witness. See Y.C. v. Holder, 741

(2d Cir. 2013) (providing that “[w]e generally

9 defer to the agency’s evaluation of the weight to be afforded

10 to an applicant’s documentary evidence” and deferring to

11 agency’s decision to afford little weight to letter from

12 applicant’s spouse).

13 Because Singh’s claims for asylum, withholding of

14 removal, and CAT relief were all based on the same factual

15 predicate, the agency’s adverse credibility determination is

16 dispositive of all three. Hong Fei Gao,

.

17 Singh argues that the agency further erred in denying CAT

18 relief because two reports in the record, not undermined by

19 the agency’s adverse credibility determination, discuss

20 torture by police in Singh’s region of India. But those

21 reports do not provide an independent basis for CAT relief

22 because they do not contain particularized evidence that

6 1 police are likely to torture him. See Mu Xiang Lin v. U.S.

2 Dep’t of Justice,

, 159–60 (2d Cir. 2005)

3 (concluding that “particularized evidence” beyond State

4 Department reports is necessary to establish eligibility for

5 CAT protection for applicant alleging she would be tortured

6 for leaving China illegally).

7 For the foregoing reasons, the petition for review is

8 DENIED. All pending motions and applications are DENIED and

9 stays VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court

7