19-3605 Singh v. Garland BIA Baumgarten, IJ A215 669 519 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 December, two thousand twenty-two. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 REENA RAGGI, 10 Circuit Judges. 11 _____________________________________ 12 13 NAVJOT SINGH, 14 Petitioner, 15 16 v. 19-3605 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., 24 New York, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Anthony P. Nicastro, Assistant 29 Director; Ilana J. Snyder, Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 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 Navjot Singh, a native and citizen of India,

10 seeks review of an October 4, 2019, decision of the BIA

11 affirming an April 11, 2019, decision of an Immigration Judge

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

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

14 Singh, No. A 215 669 519 (B.I.A. Oct. 4, 2019), aff’g No. A

15 215 669 519 (Immig. Ct. Batavia Apr. 11, 2019). We assume

16 the parties’ familiarity with the underlying facts and

17 procedural history.

18 We have reviewed the IJ’s decision as modified by the

19 BIA and do not consider the findings that the BIA did not

20 rely on. See Xue Hong Yang v. U.S. Dep’t of Justice, 426

(2d Cir. 2005). We review the adverse

22 credibility determination for substantial evidence. See

2 1

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

67, 76 (2d Cir. 2018).

3 “Considering the totality of the circumstances, and all

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

5 determination on the demeanor, candor, or responsiveness of

6 the applicant. . . , the consistency between the applicant’s

7 or witness’s written and oral statements . . . , the internal

8 consistency of each such statement, [and] the consistency of

9 such statements with other evidence of record . . . without

10 regard to whether an inconsistency, inaccuracy, or falsehood

11 goes to the heart of the applicant’s claim.” 8 U.S.C.

12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

13 determination unless, from the totality of the circumstances,

14 it is plain that no reasonable fact-finder could make such an

15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

, 167 (2d Cir. 2008); accord Hong Fei Gao,

. The agency’s determination that Singh was not

18 credible as to his claim that he was threatened and assaulted

19 by Bharatiya Janata Party members on account of his political

20 opinion and religion is supported by substantial evidence.

3 1 The agency reasonably relied on Singh’s demeanor and lack

2 of responsiveness.

(b)(1)(B)(iii). We defer

3 to such a finding, especially where, as here, there are also

4 specific findings of inconsistent testimony. See Majidi v.

5 Gonzales,

, 81 n.1 (2d Cir. 2005) (noting that “a

6 fact-finder who assesses testimony together with witness

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

8 witness who hesitated in a response was nevertheless

9 attempting truthfully to recount what he recalled of key

10 events” (internal quotation marks and brackets omitted)); see

11 also Li Hua Lin v. U.S. Dep’t of Justice,

, 109

12 (2d Cir. 2006) (“We can be . . . more confident in our review

13 of observations about an applicant’s demeanor where . . .

14 they are supported by specific examples of inconsistent

15 testimony.”). And the record supports the IJ’s findings that

16 Singh’s testimony shifted and was at times lacking detail.

17 For example, Singh’s testimony about whether he met with a

18 smuggler and knew the identity of the smuggler shifted

19 throughout the hearing. Singh’s testimony was also vague

20 concerning his political activities, and shifting concerning

4 1 whether he knew any of the farmers who helped him after his

2 second attack.

3 The agency also reasonably relied on inconsistencies

4 between Singh’s testimony and the record of his border

5 interview concerning how he crossed the border, where his

6 passport was taken from him and when it would be returned,

7 and what money he had with him. See 8 U.S.C.

8 § 1158(b)(1)(B)(iii). Singh does not dispute the reliability

9 or contents of the border interview record, which “bears

10 sufficient indicia of reliability.” Ming Zhang v. Holder,

11

, 721–22, 725 (2d Cir. 2009). The agency was not

12 compelled to credit Singh’s explanation that he may have spent

13 the $1,000 he brought from India on personal expenses during

14 his trip because he testified that he did not spend any money

15 while in Mexico. See Majidi,

(“A petitioner

16 must do more than offer a plausible explanation for his

17 inconsistent statements to secure relief; he must demonstrate

18 that a reasonable fact-finder would be compelled to credit

19 his testimony.” (internal quotation marks omitted)).

20 These inconsistency and demeanor findings constitute

21 substantial evidence for the adverse credibility

5 1 determination. See Hong Fei Gao,

; Xiu Xia

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

3 of asylum, withholding of removal, and CAT protection because

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

5 Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

6 For the foregoing reasons, the petition for review is

7 DENIED. All pending motions and applications are DENIED and

8 stays VACATED.

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

1 We do not reach the agency’s other credibility findings because the findings discussed above constitute substantial evidence for the adverse credibility determination. See Xiao Ji Chen v. U.S. Dep’t of Justice,

, 338–39 (2d Cir. 2006) (declining to remand despite error where substantial evidence supported the determination). Because the adverse credibility determination is dispositive, we do not reach the alternative determination that, even if credible, Singh failed to meet his burden of proof. See INS v. Bagamasbad,

(1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 6