18-1496 Singh v. Barr BIA Tsankov, IJ A208 179 126 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 30th day of September, two thousand twenty.

PRESENT: ROSEMARY S. POOLER, MICHAEL H. PARK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

SUKHWINDER SINGH, Petitioner,

v. 18-1496 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New York, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Mona Maria Yousif, Trial Attorney, 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 DENIED.

Petitioner Sukhwinder Singh, a native and citizen of

India, seeks review of a May 2, 2018, decision of the BIA

affirming a May 22, 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 Sukhwinder Singh, No. A 208 179 126 (B.I.A.

May 2, 2018), aff’g No. A 208 179 126 (Immig. Ct. N.Y. City

May 22, 2017). We assume the parties’ familiarity with the

underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen

v. Gonzales,

(2d Cir. 2005). The applicable

standards of review are well established. See

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

(2d Cir. 2018) (reviewing adverse credibility determination 2 under a substantial evidence standard). “Considering the

totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on . . .

the consistency between the applicant’s or witness’s written

and oral statements . . . , the internal consistency of each

such statement, the consistency of such statements with other

evidence of record . . . , and any inaccuracies or falsehoods

in such statements, . . . or any other relevant factor.”

(b)(1)(B)(iii). “We defer . . . to an IJ’s

credibility determination unless . . . 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,

. Substantial

evidence supports the agency’s adverse credibility

determination.

First, as the agency found, there were inconsistencies

between Singh’s testimony and asylum application and internal

inconsistencies in his testimony regarding whether he was

threatened and left India in 2013 and why he traveled to Cuba.

In his asylum application, Singh alleged that he supported

the Akali Dal Amritsar Party (“SADA Party” or “Mann Party”),

3 and that he fled to Cuba in January 2013 after members of the

rival Akali Dal Badal Party (“Badal Party”) threatened to

kill him. However, he testified that he did not want to

leave India before June 2014, when he alleged he was first

beaten. When confronted with this inconsistency, he changed

his testimony to say that he had left India in 2013.

His explanations were also inconsistent or not

responsive. When asked to explain why he testified that he

had not wanted to leave India before June 2014, he stated

that he went “for tourist purposes,” which did not explain

the statement in his application that he fled because Badal

Party members threatened to kill him. And his ensuing

testimony was internally inconsistent regarding whether he

was threatened in January 2013. The IJ was not required to

credit Singh’s explanation that he did not previously recall

the threat, as he was unlikely to forget a death threat that

caused him to flee to another country. See Majidi v.

Gonzales,

(2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate

that a reasonable fact-finder would be compelled to credit

4 his testimony.” (internal quotation marks and citations

omitted)).

Second, Singh’s asylum application was also inconsistent

with his initial credible fear interview, at which he also

did not mention the threat or trip to Cuba. When asked about

this inconsistency, Singh testified that he could not recall

at the time of the credible fear interview that he was

threatened. The IJ was not required to accept this

explanation. See

These inconsistencies regarding whether Singh was

threatened with death in January 2013 by Badal Party members

and why Singh went to Cuba are significant because they relate

to when and why Singh first started to fear harm by the Badal

Party. See

at 79–80 (“Where the IJ’s adverse credibility

finding is based on specific examples in the record of

inconsistent statements by the asylum applicant about matters

material to his claim of persecution, . . . , a reviewing

court will generally not be able to conclude that a reasonable

adjudicator was compelled to find otherwise.”). Furthermore,

these “dramatically different” accounts of why Singh traveled

to Cuba provide substantial evidence for the adverse

5 credibility determination and call into question Singh’s

credibility as a whole. See

(determining that

“dramatically different” accounts of incident are substantial

evidence for adverse credibility determination); see also

Siewe v. Gonzales,

(2d Cir. 2007) (“[A]

single false document or a single instance of false testimony

may (if attributable to the petitioner) infect the balance of

the alien’s uncorroborated or unauthenticated evidence.”).

Singh challenges the IJ’s reliance on the fact that he

did not provide testimony or a letter from his father’s

friend. However, as determined by the BIA, there is

sufficient support for the adverse credibility determination,

even without this finding. See Majidi,

.

Singh also argues that the agency ignored affidavits

corroborating his claim and that the agency could have

considered his CAT claim regarding the actions of the police.

However, Singh did not exhaust these arguments before the

BIA. See Lin Zhong v. U.S. Dep’t of Justice,

,

122–23 (2d Cir. 2007) (requiring petitioner to exhaust all

issues before the BIA). Because Singh’s claims were all

based on the same factual predicate, the adverse credibility

6 determination is dispositive of asylum, withholding of

removal, and CAT relief. See Paul v. Gonzales,

,

156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED.

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

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