19-2838 Singh v. Garland BIA Loprest, IJ A205 586 444 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of November, two thousand twenty-one. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 GURDEV SINGH, 14 Petitioner, 15 16 v. 19-2838 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepti Vithal, Esq., Richmond 24 Hill, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Derek C. Julius, 28 Assistant Director; Karen L. 1 Melnik, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Gurdev Singh, a native and citizen of India,

10 seeks review of an August 6, 2019 decision of the BIA

11 affirming a November 30, 2017 decision of an Immigration Judge

12 (“IJ”) denying asylum, withholding of removal, and protection

13 under the Convention Against Torture (“CAT”). In re Gurdev

14 Singh, No. A 205 586 444 (B.I.A. Aug. 6, 2019), aff’g No. A

15 205 586 444 (Immig. Ct. N.Y. City Nov. 30, 2017). We assume

16 the parties’ familiarity with the underlying facts and

17 procedural history.

18 We review the IJ’s decision as modified by the BIA and

19 do not consider the findings that the BIA did not rely on.

20 See Xue Hong Yang v. U.S. Dep’t of Justice,

, 522

21 (2d Cir. 2005). Here, we review the IJ’s adverse credibility

22 determination for substantial evidence. See 8 U.S.C.

23 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

2 1 (2d Cir. 2018). We defer to that determination “unless, from

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

3 reasonable fact-finder could make such an adverse credibility

4 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

5 2008); accord Hong Fei Gao,

. “Considering the

6 totality of the circumstances, and all relevant factors, a

7 trier of fact may base a credibility determination on the

8 demeanor, candor, or responsiveness of the applicant. . . ,

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

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

11 such statement, [and] the consistency of such statements with

12 other evidence of record . . . without regard to whether an

13 inconsistency, inaccuracy, or falsehood goes to the heart of

14 the applicant’s claim.”

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

15 Singh claimed that he was threatened and assaulted by

16 Congress Party members and a police officer on account of his

17 political opinion. The agency’s determination that this

18 claim was not credible is supported by substantial evidence.

19 The agency reasonably relied on Singh’s inconsistent accounts

20 of past harm by the police. See 8 U.S.C.

21 § 1158(b)(1)(B)(iii). During the credible fear interview—

3 1 which was memorialized in a typewritten list of questions and

2 answers, was conducted with an interpreter, and reflects that

3 Singh understood the questions about past harm and fear of

4 future harm, Ming Zhang v. Holder,

(2d Cir.

5 2009)—Singh confirmed that he had not been harmed by or had

6 problems with the police. But during his hearing, Singh

7 testified that a police officer slapped him and threatened

8 him with arrest and detention. Singh’s explanation for the

9 inconsistency—that the telephonic interpreter at his

10 interview was sometimes not clear or audible and that he did

11 not think a slap constituted mistreatment—does not

12 “demonstrate that a reasonable fact-finder would be compelled

13 to credit his testimony.” Majidi v. Gonzales,

,

14 80-81 (2d Cir. 2005) (quotation marks omitted)).

15 In finding that Singh was not credible, the agency also

16 properly relied on Singh’s inconsistent testimony concerning

17 his 2010 visa application. See 8 U.S.C.

18 § 1158(b)(1)(B)(iii). Singh testified that he applied for

19 asylum while in India, but denied that he had applied for a

20 tourist visa until he was confronted with the record of his

21 application, which pre-dated his alleged political activity.

4 1 The agency’s adverse credibility determination is

2 bolstered by the IJ’s determination that Singh’s demeanor

3 undermined his credibility. We accord particular weight to

4 that finding here. See Majidi,

n.1 (“[a]

5 fact-finder who assesses testimony together with witness

6 demeanor is in the best position to discern . . . whether a

7 witness who hesitated in a response was nevertheless

8 attempting truthfully to recount what he recalled of key

9 events” (internal quotation marks omitted)). The record

10 supports the finding because the interpreter told the IJ that

11 Singh was sometimes “mumbling” and the IJ noted on the record

12 that Singh had “his head down in his chest” on cross-

13 examination, which was a change from his demeanor on direct

14 examination.

15 These inconsistency and demeanor findings constitute

16 substantial evidence for the adverse credibility

17 determination. See Hong Fei Gao,

; Xiu Xia

18 Lin, 534 F.3d at 165–66. 1 That determination is dispositive

1 We do not rely on the agency’s finding that Singh testified inconsistently about how many times he was threatened because the findings discussed above constitute substantial evidence for the agency’s decision. See Xiao Ji Chen v. U.S. Dep’t of Justice,

, 338–39 (2d Cir. 2006). 5 1 of asylum, withholding of removal, and CAT protection because

2 the claims were based on the same factual predicate. See

3 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

4 Singh’s due process claim fails because he has not alleged

5 “cognizable prejudice” resulting from the untranslated and

6 indiscernible statements. Garcia-Villeda v. Mukasey, 531

(2d Cir. 2008) (internal quotation marks

8 omitted).

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

6