20-574 Singh v. Garland BIA Conroy, IJ A205 935 367 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 14th day of March, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD C. WESLEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 MANPREET SINGH, 14 Petitioner, 15 16 v. 20-574 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: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Erica 28 B. Miles, Senior Litigation 1 Counsel; Jaclyn E. Shea, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DENIED.

10 Petitioner Manpreet Singh, a native and citizen of India,

11 seeks review of a January 21, 2020, decision of the BIA

12 affirming a March 9, 2018, decision of an Immigration Judge

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

14 removal, and relief under the Convention Against Torture

15 (“CAT”). In re Manpreet Singh, No. A205 935 367 (B.I.A. Jan.

16 21, 2020), aff’g No. A205 935 367 (Immig. Ct. N.Y. City Mar.

17 9, 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 I. Credibility and Corroboration

20 Under the circumstances, we have reviewed the decision

21 of the IJ as supplemented by the BIA. See Yan Chen v.

22 Gonzales,

(2d Cir. 2005). We review adverse

23 credibility determinations for substantial evidence. See

24

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

1 67, 76 (2d Cir. 2018). “Considering the totality of the

2 circumstances, and all relevant factors, a trier of fact may

3 base a credibility determination on the demeanor, candor, or

4 responsiveness of the applicant or witness, . . . the

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

6 oral statements . . . , the internal consistency of each such

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

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

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

10 the applicant’s claim.”

(b)(1)(B)(iii). “We

11 defer . . . to an IJ’s credibility determination unless, from

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

13 reasonable fact-finder could make such an adverse credibility

14 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

15 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial

16 evidence supports the adverse credibility determination.

17 The agency reasonably relied on inconsistencies between

18 Singh’s testimony and other evidence. See 8 U.S.C.

19 § 1158(b)(1)(B)(iii). Singh gave contradictory statements

20 about his political activities, providing in his affidavit

21 that he distributed flyers door-to-door, but explicitly

3 1 denying that he did so when testifying. Singh also made

2 inconsistent statements about how long he hid in Delhi after

3 his first alleged attack by Congress Party members, stating

4 in his affidavit that he returned to his village after a few

5 months, but testifying that he remained in Delhi for three

6 years. He provided the specific day of a month that he was

7 released from the hospital, but not the month or year that he

8 was hospitalized, and the day he gave was inconsistent with

9 the date in his affidavit. The IJ was not required to credit

10 Singh’s explanation that he forgot the dates and was too

11 “uneducated” to recall them, particularly as he provided

12 specific dates when preparing his application.

13 The agency also reasonably concluded that Singh’s

14 corroborating evidence did not rehabilitate his credibility.

15 See Biao Yang v. Gonzales,

(2d Cir. 2007)

16 (an alien’s “failure to corroborate his . . . testimony may

17 bear on credibility, because the absence of corroboration in

18 general makes an applicant unable to rehabilitate testimony

19 that has already been called into question.” The agency did

20 not err in declining to give weight to Singh’s documentary

21 evidence. See Y.C. v. Holder,

(2d Cir.

4 1 2013) (“We defer to the agency’s determination of the weight

2 afforded to an alien’s documentary evidence.”). An affidavit

3 from Singh’s father was prepared by an individual who

4 simultaneously translated Singh’s father’s oral statement

5 from Punjabi to English and transcribed the statement in

6 English. The IJ did not err in declining to credit that

7 document because there was no evidence to confirm that the

8 translation was accurate. See Shunfu Li v. Mukasey,

141, 149 (2d Cir. 2008) (holding that “we afford IJs

10 considerable flexibility in determining the authenticity of

11 . . . documents from the totality of the evidence”); cf.

12

(“[A]ny foreign language document offered

13 by a party in a proceeding [in immigration court] shall be

14 accompanied by an English language translation, as well as by

15 a certification signed by the translator.”). Contrary to

16 Singh’s argument here, the IJ asked counsel to explain the

17 lack of certification. Singh also contends that the IJ

18 ignored country conditions evidence, but there is nothing in

19 the record to suggest that the IJ ignored material evidence

20 given the IJ’s statement that he considered all of the

21 documents in the record and his acknowledgment of political

5 1 tensions in India. See Zhi Yun Gao v. Mukasey,

,

2 87 (2d Cir. 2007) (agencies are not required to “expressly

3 parse or refute on the record each individual argument or

4 piece of evidence offered by the petitioner” (quotation marks

5 omitted)).

6 Considering the multiple inconsistencies and lack of

7 reliable corroboration, substantial evidence supports the

8 agency’s adverse credibility determination. See 8 U.S.C.

9 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. This

10 adverse credibility determination is dispositive of asylum,

11 withholding of removal and CAT relief because all three claims

12 arose from the same factual predicate. See Paul v. Gonzales,

13

, 156–57 (2d Cir. 2006).

14 II. Motion to Remand

15 The BIA did not abuse its discretion by denying Singh’s

16 motion to remand for consideration of a neuropsychological

17 assessment that he obtained after his hearing. See Li Yong

18 Cao v. U.S. Dep’t of Justice,

(2d Cir. 2005)

19 (reviewing BIA’s denial of remand for abuse of discretion).

20 As the BIA found, the evidence was not previously unavailable

21 as required for remand for consideration of additional

6 1 evidence because Singh could have obtained the evaluation

2 prior to his hearing before the IJ.

; see also

3

(c)(1).

4 Nor did the agency deprive Singh of due process in

5 declining to remand for consideration of the report. “To

6 establish a violation of due process, an alien must show that

7 []he was denied a full and fair opportunity to present h[is]

8 claims or that the IJ or BIA otherwise deprived h[im] of

9 fundamental fairness.” Burger v. Gonzales,

, 134

10 (2d Cir. 2007) (quotation marks omitted). The BIA did not

11 err in concluding that Singh received due process because the

12 record does not show sufficient indicia of incompetency to

13 warrant an inquiry. “[T]he test for determining whether an

14 alien is competent to participate in immigration proceedings

15 is whether he . . . has a rational and factual understanding

16 of the nature and object of the proceedings, can consult with

17 the attorney or representative if there is one, and has a

18 reasonable opportunity to examine and present evidence and

19 cross-examine witnesses.” Matter of M-A-M-,

474, 479 (B.I.A. 2011). Aliens in immigration proceedings

21 are presumed competent and, only when indicia of incompetency

7 1 present themselves is the IJ required to render a competency

2 determination. Matter of J-S-S-,

, 681

3 (B.I.A. 2015). Singh’s reliance on M-A-M- is misplaced

4 because that case involved a pro se respondent diagnosed with

5 schizophrenia; in contrast, Singh was represented by counsel,

6 the record reflected that he had been able to give counsel a

7 detailed statement of events, and the psychologist’s report

8 reflected some cognitive disability but also that his

9 thoughts were “logical” and that he was capable of “concrete

10 thinking.” Singh’s presentation of his evidence through

11 counsel evinced a “meaningful” opportunity to be heard, and

12 he was therefore not deprived of due process. Burger, 498

13 F.3d at 134.

14 For the foregoing reasons, the petition for review is

15 DENIED. All pending motions and applications are DENIED and

16 stays VACATED.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

8