20-1614 Singh v. Garland BIA Thompson, IJ A208 565 197

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of October, two thousand twenty- two.

PRESENT: JON O. NEWMAN, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

SANDEEP SINGH, Petitioner,

v. 20-1614 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Mercedes Altman, Law Office of Mercedes Altman, Westbury, NY.

FOR RESPONDENT: Brian Boynton, Assistant Attorney General; Zoe J. Heller, Senior Litigation Counsel; Enitan O. Otunla, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Sandeep Singh, a native and citizen of India,

seeks review of an April 20, 2020 decision of the BIA,

affirming a July 12, 2018 decision of an Immigration Judge

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

removal, and relief under the Convention Against Torture

(“CAT”). In re Sandeep Singh, No. A208 565 197 (B.I.A.

Apr. 20, 2020), aff’g No. A208 565 197 (Immigr. Ct. N.Y. City

July 12, 2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

Under the circumstances, we have considered the decision

of the IJ as modified by the BIA, i.e., minus the burden

finding the BIA did not reach. See Xue Hong Yang v. U.S.

Dep’t of Justice,

(2d Cir. 2005). We review

the agency’s adverse credibility determination for

substantial evidence, see Hong Fei Gao v. Sessions,

2 67, 76 (2d Cir. 2018), and “the administrative findings of

fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary,”

(b)(4)(B). “Considering the totality of the

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

base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the

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

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

statement, [and] the consistency of such statements with

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

inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant factor.”

(b)(1)(B)(iii). “We defer . . . to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia Lin

v. Mukasey,

(2d Cir. 2008); accord Hong Fei

Gao, 891 F.3d at 76. Substantial evidence supports the

agency’s determination that Singh was not credible as to his

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

3 beat and threatened to kill him if he did not leave the

Simranjit Singh Mann (“Mann”) Party and join them.

The agency reasonably relied in part on the inconsistency

between Singh’s application and testimony regarding whether

Badal Party members first told him to leave his party in

September 2014, which was the month he joined the Mann Party,

or in January 2015, which was the month he was allegedly first

attacked. See

(b)(1)(B)(iii). Rather than

provide a compelling explanation for this inconsistency,

Singh became evasive and repeatedly changed his testimony as

to whether the first encounter occurred in September or in

January. See Majidi v. Gonzales,

(2d Cir.

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

explanation for his inconsistent statements to secure relief;

he must demonstrate that a reasonable fact-finder would be

compelled to credit his testimony.” (internal quotation marks

omitted)). We do not reach Singh’s argument that the

inconsistency was a result of difficulties in translation

because he did not exhaust that allegation before the agency.

See Lin Zhong v. U.S. Dep’t of Justice,

, 107

n.1, 122 (2d Cir. 2007). In any event, this explanation would

not resolve the inconsistency identified by the agency, since

4 the translation difficulties alleged by Singh concerned the

inconsistency between his application and his initial

testimony, whereas the agency took issue with the internal

inconsistencies that existed within Singh’s testimony.

The agency also reasonably relied on the fact that the

affidavit submitted by Singh’s mother in support of his

application made no mention of the alleged murder of Singh’s

father by Badal Party members. See

(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 78–79.

Although “omissions are less probative of credibility than

inconsistencies created by direct contradictions in evidence

and testimony,” the agency may rely on the omission of facts

“the witness would reasonably have been expected to

disclose.” Hong Fei Gao, 891 F.3d at 78. Because Singh’s

mother stated that Badal Party members had come to their

family home and harassed them about Singh’s whereabouts, it

was reasonable for the agency to expect that she would have

revealed that her husband was murdered in one of those visits.

See id. Singh’s explanation that his mother described only

what happened to Singh was belied by her affidavit, which

also discussed the Badal Party harassing her. See Majidi,

.

5 The agency also reasonably found implausible Singh’s

testimony that there were no press reports of his father’s

murder because the press does not report the Badal Party’s

criminal activities. See

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

That finding is supported by the record, which includes

articles discussing Badal Party members’ criminal acts and

states that there is an independent media that expresses a

variety of views without restriction. See Siewe v. Gonzales,

, 168–69 (2d Cir. 2007) (holding that we will

uphold IJ’s inference so long as it is “tethered” to “record

facts, or even a single fact, viewed in the light of common

sense and ordinary experience”).

The inconsistencies, omission, and implausibility

constitute substantial evidence for the adverse credibility

determination. See Xiu Xia Lin, 534 F.3d at 165–66; see also

Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020)

(“[E]ven a single inconsistency might preclude an alien from

showing that an IJ was compelled to find him credible.

Multiple inconsistencies would so preclude even more

forcefully.”). The adverse credibility determination is

dispositive of asylum, withholding of removal, and CAT relief

because all three claims are based on the same factual

6 predicate. See Paul v. Gonzales,

, 156–57

(2d Cir. 2006).

We lack jurisdiction to consider Singh’s challenge to

the BIA’s decision to resolve his appeal in a single-member

decision. Kambolli v. Gonzales,

, 464–65 (2d Cir.

2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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