20-1065 Singh v. Garland BIA Wilson, IJ A205 422 484

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 17th day of June, two thousand twenty-two. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 GURJOT SINGH, 14 Petitioner, 15 16 v. 20-1065 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Deepak Ahluwalia, Esq., Singh 24 Ahluwalia Immigration Law Firm, 25 Fresno, CA. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Paul 1 Fiorino, Senior Litigation 2 Counsel; Kevin J. Conway, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

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

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

11 is DENIED.

12 Petitioner Gurjot Singh, a native and citizen of India,

13 seeks review of a February 24, 2020 decision of the BIA

14 affirming an April 30, 2018 decision of an Immigration Judge

15 (“IJ”) denying Singh’s application for asylum, withholding of

16 removal, and relief under the Convention Against Torture

17 (“CAT”). In re Gurjot Singh, No. A205 422 484 (B.I.A. Feb.

18 24, 2020), aff’g No. A205 422 484 (Immig. Ct. N.Y. City Apr.

19 30, 2018). We assume the parties’ familiarity with the

20 underlying facts and procedural history.

21 Under the circumstances, we have reviewed the IJ’s

22 decision as modified by the BIA — that is, except for the

23 IJ’s findings that the BIA did not reach. See Xue Hong Yang

24 v. U.S. Dep’t of Justice,

(2d Cir. 2005).

25 The applicable standards of review are well established. See

26

(b)(4)(B) (“[T]he administrative findings of

2 1 fact are conclusive unless any reasonable adjudicator would

2 be compelled to conclude to the contrary[.]”). “[W]e review

3 the agency’s decision for substantial evidence and must defer

4 to the factfinder’s findings based on such relevant evidence

5 as a reasonable mind might accept as adequate to support a

6 conclusion.” Singh v. Garland,

(2d Cir.

7 2021) (internal quotation marks omitted).

8 Although the IJ’s credibility determination should have

9 been more explicit, contrary to Singh’s contention, the BIA

10 did not err in concluding that the IJ explicitly found Singh

11 not credible. The IJ identified record inconsistencies and

12 omissions and concluded that those issues and the lack of

13 corroboration undermined his credibility regarding material

14 parts of his claim.

15 “Considering the totality of the circumstances, and all

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

17 determination on the demeanor, candor, or responsiveness of

18 the applicant . . ., the inherent plausibility of the

19 applicant’s . . . account, the consistency between the

20 applicant’s . . . written and oral statements . . ., the

21 internal consistency of each such statement, the consistency

22 of such statements with other evidence of record . . ., and

3 1 any inaccuracies or falsehoods in such statements, without

2 regard to whether an inconsistency, inaccuracy, or falsehood

3 goes to the heart of the applicant’s claim, or any other

4 relevant factor.”

(b)(1)(B)(iii). “We defer

5 . . . to an IJ’s credibility determination unless, from the

6 totality of the circumstances, it is plain that no reasonable

7 fact-finder could make such an adverse credibility ruling.”

8 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

9 accord Hong Fei Gao v. Sessions,

(2d Cir.

10 2018).

11 Substantial evidence supports the agency’s determination

12 that Singh was not credible as to his claim that he suffered

13 past persecution and fears future persecution and torture on

14 account of his work for the Akali Dal Amritsar Party (“Mann

15 Party”) and his father’s membership in that party. The

16 agency reasonably relied on inconsistencies between Singh’s

17 testimony that he was a party worker but not a party member

18 and a letter from the District President of the Mann Party

19 stating that Singh became a member in 2012. See 8 U.S.C.

20 § 1158(b)(1)(B)(iii). Singh’s explanations for this

21 inconsistency only created further inconsistencies, as Singh

22 undermined his own evidence by stating that there are no

4 1 district presidents in the party and that he had not obtained

2 or submitted a letter from the party. See id.; see also

3 Majidi v. Gonzales,

(2d Cir. 2005) (“A

4 petitioner must do more than offer a plausible explanation

5 for his inconsistent statements to secure relief; he must

6 demonstrate that a reasonable fact-finder would be compelled

7 to credit his testimony.” (internal quotation marks

8 omitted)).

9 In making its adverse credibility determination, the

10 agency also reasonably relied on omissions of material

11 information from Singh’s father’s affidavits. Singh asserted

12 that, after he left India, his father was beaten several times

13 and had informed Singh that Congress Party members and police

14 continue to look for Singh. See 8 U.S.C.

15 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78–

16 79. Although “omissions are less probative of credibility

17 than inconsistencies created by direct contradictions in

18 evidence and testimony,” the agency may rely on the omission

19 of facts that “the witness would reasonably have been expected

20 to disclose.” Hong Fei Gao, 891 F.3d 78–79 (internal

21 quotation marks omitted). Because Singh’s father stated that

22 Singh’s life remains in danger in India, the agency reasonably

5 1 expected that he would have included threats against Singh

2 and continued violence against himself. See id. The

3 Government asked Singh why his father’s affidavit failed to

4 mention the continued threats and beatings, but Singh just

5 repeated that his father was beaten rather than provide an

6 explanation. See Majidi,

.

7 The agency reasonably relied further on his failure to

8 rehabilitate his testimony or independently establish his

9 eligibility with reliable corroborating evidence. See 8

(b)(1)(B)(ii) (“Where the trier of fact

11 determines that the applicant should provide evidence that

12 corroborates otherwise credible testimony, such evidence must

13 be provided unless the applicant does not have the evidence

14 and cannot reasonably obtain the evidence.”); Zou v. Garland,

15 No. 19-2003,

, at *1 (2d Cir. Sept. 9, 2021)

16 (“Even absent an adverse credibility determination, a lack of

17 corroboration may be an independent basis for the denial of

18 relief if the agency identifies reasonably available evidence

19 that should have been presented.”). Singh does not challenge

20 that finding.

21 Given the inconsistencies, omissions, and lack of

22 corroboration, the agency’s adverse credibility determination

6 1 is supported by substantial evidence. See 8 U.S.C.

2 § 1158(b)(1)(B)(iii); see also Likai Gao v. Barr,

137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency

4 might preclude an alien from showing that an IJ was compelled

5 to find him credible. Multiple inconsistencies would so

6 preclude even more forcefully.”). That determination was

7 dispositive of asylum, withholding of removal, and CAT relief

8 because all three claims were based on the same factual

9 predicate. See Paul v. Gonzales,

, 156–57 (2d

10 Cir. 2006).

11 For the foregoing reasons, the petition for review is

12 DENIED. All pending motions and applications are DENIED and

13 stays VACATED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court

7