18-3364 Singh v. Garland BIA Douchy, IJ A205 941 739 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 10th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 PARWINDER SINGH, AKA JOGA SINGH, 14 Petitioner, 15 16 v. 18-3364 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Jaspreet Singh, Esq., Jackson 24 Heights, NY. 25

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Abigail 4 E. Leach, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

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

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

12 Petitioner Parwinder Singh, a native and citizen of

13 India, seeks review of an October 15, 2018, decision of the

14 BIA affirming a July 28, 2017, decision of an Immigration

15 Judge (“IJ”) denying his application for asylum, withholding

16 of removal, and relief under the Convention Against Torture

17 (“CAT”). In re Parwinder Singh, No. A205 941 739 (B.I.A.

18 Oct. 15, 2018), aff’g No. A205 941 739 (Immig. Ct. N.Y. City

19 Jul. 28, 2017). We assume the parties’ familiarity with the

20 underlying facts and procedural history.

21 Under the circumstances of this case, we have reviewed

22 both the IJ’s and BIA’s decisions “for the sake of

23 completeness.” Wangchuck v. DHS,

(2d Cir.

24 2006). The applicable standards of review are well

25 established. See

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

26 Sessions,

(2d Cir. 2018).

2 1 “Considering the totality of the circumstances, and all

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

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

4 or witness’s written and oral statements . . . without regard

5 to whether an inconsistency, inaccuracy, or falsehood goes to

6 the heart of the applicant’s claim, or any other relevant

7 factor.”

(b)(1)(B)(iii). “We defer . . . to

8 an IJ’s credibility determination unless, from the totality

9 of the circumstances, it is plain that no reasonable fact-

10 finder could make such an adverse credibility ruling.” Xiu

11 Xia Lin v. Mukasey,

(2d Cir. 2008); accord

12 Hong Fei Gao,

. Substantial evidence supports

13 the agency’s determination that Singh was not credible as to

14 his claim that members of the Akali Dal Badal Party (“ADBP”)

15 beat him in June 2012 because he left the ADBP and beat him

16 again in March 2013 because he joined the rival Shiromani

17 Akali Dal Mann Party (“SADM”).

18 The agency reasonably relied on Singh’s inconsistent

19 statements about why he had been attacked. In an interview

20 at the border, he claimed that he was attacked for his

21 father’s switch in political parties, but he did not mention

22 his own political affiliation. However, in a credible fear

3 1 interview ten days later, he stated that the ADBP government

2 will kill him if he returns to India because he “did not join

3 their party,” and that his switch from the ADBP to the SADM

4 and refusal to rejoin the ADBP motivated the beatings. CAR

5 at 545. When asked why he did not mention at the border

6 interview that his own party switch was the reason he had

7 been beaten, he responded, “I forgot . . . I don’t know.”

8 CAR at 547. The IJ was not required to accept that

9 explanation. See Majidi v. Gonzales,

(2d

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

11 explanation for his inconsistent statements to secure relief;

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

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

14 omitted)). This inconsistency in Singh’s testimony about the

15 reason he was attacked, by itself, constitutes substantial

16 support for the adverse credibility determination because

17 that reason is material to his asylum claim. 2 See Xian Tuan

18 Ye v. DHS,

(2d Cir. 2006) (holding that

19 a material inconsistency concerning the basis of an

2Thus, we need not consider the other basis for the adverse credibility determination, i.e., Singh’s omission of a hospital visit from his asylum application. But we note that this omission is not on its own worth significant weight. See Hong Fei Gao,

. 4 1 applicant’s asylum claim is substantial evidence of adverse

2 credibility); see also Siewe v. Gonzales,

, 170

3 (2d Cir. 2007) (“[A] single instance of false testimony may

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

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

6 Singh argues that his later statement was not

7 inconsistent with his border interview, but merely “added

8 more details.” Pet’r’s Br. at 7-8. Although we have held

9 that omissions are less probative than inconsistencies, and

10 that an asylum applicant is not required to list every detail

11 to which he will eventually testify at the merits hearing,

12 see Hong Fei Gao,

, the agency did not err

13 in relying on the “omission” of Singh’s own party affiliation

14 as the reason for the attacks. This was a significant and

15 specific fact that went to the heart of Singh’s claim, and

16 the IJ could reasonably expect him to have disclosed it at

17 the border interview. See

(weight given to an

18 omission depends, in part, on whether “facts are ones that a

19 credible petitioner would reasonably have been expected to

20 disclose under the relevant circumstances”); see also

21 Lianping Li v. Lynch,

(2d Cir. 2016)

22 (upholding adverse credibility determination where petitioner

5 1 “did not simply omit incidents of persecution . . . [but

2 rather] described the same incidents of persecution

3 differently”); Siewe,

(“So long as there is

4 a basis in the evidence for a challenged inference, we do not

5 question whether a different inference was available or more

6 likely.”).

7 Singh also argues that his border interview was

8 unreliable, but the BIA reasonably concluded that the

9 interview was reliable. 3 Singh affirmatively presented

10 himself at the border and sought protection, and he did not

11 dispute that the interview correctly reflected his responses.

12 Further, the interview was conducted in Punjabi, was

13 memorialized in typewritten question and answer format that

14 Singh initialed and signed, and was designed to elicit a claim

15 for asylum. See Ming Zhang v. Holder,

(2d

16 Cir. 2009) (recognizing that a border interview record “bears

17 hallmarks of accuracy and reliability” when “it is

18 typewritten, signed by petitioner, and initialed . . . on

19 each page” and when it “was conducted in a manner designed to

3 Although the Government contends that this argument is unexhausted because Singh did not raise it before the BIA, we may reach it because the BIA considered the interview record and concluded that it was reliable. See Xian Tuan Ye,

(excusing failure to exhaust where BIA addressed the issue). 6 1 elicit the details of an asylum claim . . . and . . . contains

2 no indication that the alien was reluctant to reveal

3 information or did not understand English or the translations

4 provided by the interpreter” (internal quotation marks and

5 brackets omitted)).

6 Having questioned Singh’s credibility, the agency

7 reasonably determined that he did not rehabilitate his

8 credibility with reliable corroborating evidence. See Biao

9 Yang v. Gonzales,

(2d Cir. 2007) (“An

10 applicant’s failure to corroborate his or her testimony may

11 bear on credibility, because the absence of corroboration in

12 general makes an applicant unable to rehabilitate testimony

13 that has already been called into question.”). The IJ did

14 not err in giving diminished weight to affidavits from Singh’s

15 parents, his neighbor, an elected official from his village,

16 and a Sikh Temple official because the authors were not

17 subject to cross-examination and Singh’s parents were

18 interested witnesses. See Y.C. v. Holder,

,

19 334 (2d Cir. 2013) (explaining that “[w]e generally defer to

20 the agency’s evaluation of the weight to be afforded an

21 applicant’s documentary evidence” and deferring to agency’s

22 decision to afford little weight to letter from applicant’s

7 1 spouse); Matter of H-L-H- & Z-Y-Z-,

, 215

2 (BIA 2010) (giving diminished weight to letters from friends

3 and family because they were from interested witnesses not

4 subject to cross-examination), rev’d on other grounds by Hui

5 Lin Huang v. Holder,

(2d Cir. 2012).

6 The IJ also reasonably relied on the lack of a statement

7 or testimony from Singh’s brother because the IJ granted

8 Singh’s request for a continuance and put Singh on notice

9 that she “might be able to draw an adverse inference if he is

10 not presented as a witness.” CAR at 80. Given the issues

11 with Singh’s credibility, the agency’s expectation of

12 corroborating evidence from Singh’s brother was reasonable.

13 See Diallo v. INS,

(2d Cir. 2000) (noting

14 that “corroboration may bolster credibility”).

15 Further, we decline to consider Singh’s argument that

16 this failure to provide evidence from his brother was

17 attributable to his former attorney’s alleged ineffective

18 assistance. Singh has forfeited this argument by not

19 complying with the procedural requirements for bringing an

20 ineffective assistance claim set forth in Matter of Lozada,

21

(BIA 1988), which include alerting former

22 counsel of the allegation and giving counsel an opportunity

8 1 to respond. See Jian Yun Zheng v. U.S. Dep’t of Justice, 409

(2d Cir. 2005) (holding that “alien who has failed

3 to comply substantially with the Lozada requirements . . .

4 forfeits h[is] ineffective assistance of counsel claim in

5 this Court”).

6 Because Singh’s claims were all based on the same factual

7 predicate, the adverse credibility determination is

8 dispositive of asylum, withholding of removal, and CAT

9 relief. See Paul v. Gonzales,

(2d Cir.

10 2006). While Singh argues that the agency erred in denying

11 CAT relief because a report and newspaper articles discussed

12 unlawful killings by police and anti-Sikh violence, those

13 documents do not provide an independent basis for CAT relief.

14 Singh, who did not allege past persecution by the police or

15 on account of his Sikh religion, did not submit particularized

16 evidence that he is likely to be a victim of an unlawful

17 killing by police or anti-Sikh violence. See Mu Xiang Lin v.

18 U.S. Dep’t of Justice,

, 159–60 (2d Cir. 2005)

19 (concluding that “particularized evidence” beyond State

20 Department reports is necessary to establish eligibility for

21 CAT protection for applicant alleging she would be tortured

22 for leaving China illegally); Jian Xing Huang v. U.S. INS,

9 1

(2d Cir. 2005) (“In the absence of solid

2 support in the record . . . , [an applicant’s] fear is

3 speculative at best.”); Mu-Xing Wang v. Ashcroft,

(2d Cir. 2003) (an applicant for CAT relief must

5 show a likelihood of torture in “his particular alleged

6 circumstances”).

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

10