20-935 Singh v. Garland BIA Christensen, IJ A 208 195 759 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.

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 1st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 BETH ROBINBSON, 11 Circuit Judges. 12 _____________________________________ 13 14 HAPPY SINGH, 15 Petitioner, 16 17 v. 20-935 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Happy Singh, pro se, South 25 Richmond Hill, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Zoe J. Heller, 1 Senior Litigation Counsel; Bernard 2 A. Joseph, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 Petitioner Happy Singh, a native and citizen of India,

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

13 affirming a March 29, 2018 decision of an Immigration Judge

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

15 removal, and relief under the Convention Against Torture

16 (“CAT”). In re Happy Singh, No. A 208 195 759 (B.I.A. Feb.

17 13, 2020), aff’g No. A 208 195 759 (Immig. Ct. N.Y.C. Mar.

18 29, 2018). We assume the parties’ familiarity with the

19 underlying facts and procedural history.

20 We have reviewed the IJ’s decision as supplemented by

21 the BIA. See Yan Chen v. Gonzales,

(2d

22 Cir. 2005). The applicable standards of review are well

23 established. See

(b)(4)(B) (providing that

24 “the administrative findings of fact are conclusive unless

2 1 any reasonable adjudicator would be compelled to conclude to

2 the contrary”); Hong Fei Gao v. Sessions,

(2d

3 Cir. 2018) (reviewing an adverse credibility determination

4 under a substantial evidence standard). “Considering the

5 totality of the circumstances, and all relevant factors, a

6 trier of fact may base a credibility determination on the

7 demeanor, candor, or responsiveness of the applicant or

8 witness” and inconsistencies within and between an

9 applicant’s statements and other evidence, “without regard to

10 whether an inconsistency, inaccuracy, or falsehood goes to

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

12 factor.”

(b)(1)(B)(iii). “We defer . . . to

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

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

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

16 Xia Lin v. Mukasey,

(2d Cir. 2008); accord

17 Hong Fei Gao,

.

18 Here, substantial evidence supports the agency’s adverse

19 credibility determination. Singh alleged that he joined the

20 Sikh-nationalist Akali Dal Party (“Mann Party”) in March 2013

21 and was attacked by members of the rival Akali Dal Badal and

3 1 Bharatiya Janata Parties in September 2013 and December 2014.

2 He alleged that he was hospitalized after the second attack

3 and then went into hiding with relatives before fleeing to

4 the United States. The agency reasonably relied on

5 inconsistencies in Singh’s testimony, as well as

6 inconsistencies between his testimony and application, to

7 make its determination. See

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

8 A written statement attached to Singh’s application reported

9 that he hid at his uncle’s home from January 2015 to August

10 2015, but both his application and testimony reflected that

11 he was working during that period. Singh also made

12 inconsistent statements about the nature of his employment

13 that he was unable to resolve.

14 The agency also reasonably relied on omissions from

15 Singh’s application and supporting documents. He testified

16 that he spent a month and a half in Cuba before returning to

17 India and leaving for the United States, but that travel was

18 not reported in his asylum application or his aunt’s letter,

19 which covered the same time period. See Xiu Xia Lin, 534

20 F.3d at 167 (affirming an adverse credibility determination

21 based, in part, on omissions from corroborating letters).

4 1 And a letter from Singh’s uncle does not mention that Singh

2 was in hiding at his home for nine months in 2015. The agency

3 did not err in relying on these omissions, which either

4 created an inconsistency concerning when Singh was in India

5 or related to information that a witness reasonably would be

6 expected to include. See Hong Fei Gao,

(“[T]he

7 probative value of a witness’s prior silence on particular

8 facts depends on whether those facts are ones the witness

9 would reasonably have been expected to disclose.”).

10 The adverse credibility determination is bolstered by

11 the IJ’s demeanor finding. We defer to the IJ’s demeanor

12 finding because the IJ is in the best position to interpret

13 demeanor See Lin v. U.S. Dep’t of Just.,

(2d

14 Cir. 2006) (“[W]e give particular deference to

15 [determinations] that are based on the adjudicator’s

16 observation of the applicant’s demeanor, in recognition of

17 the fact that the IJ’s ability to observe the witness’s

18 demeanor places her in the best position to evaluate whether

19 apparent problems in the witness’s testimony suggest a lack

20 of credibility or, rather, can be attributed to an innocent

21 cause such as difficulty understanding the question.”)

5 1 (quotation marks omitted). Here, the record reflects that

2 Singh was not responsive to questions regarding

3 inconsistencies, particularly those relating to his trip to

4 Cuba.

5 The agency also reasonably relied on the lack of

6 corroboration as further evidence of a lack of credibility.

7 See Biao Yang v. Gonzales,

(2d Cir. 2007)

8 (“An applicant’s failure to corroborate his or her testimony

9 may bear on credibility, because the absence of corroboration

10 in general makes an applicant unable to rehabilitate

11 testimony that has already been called into question.”).

12 Letters from Singh’s relatives omitted key information and

13 their authors were not subject to cross-examination. While

14 the remaining evidence supported Singh’s claims about his

15 party membership, it did not confirm his allegations of past

16 harm or resolve inconsistencies. See Y.C. v. Holder, 741

(2d Cir. 2013) (“We generally defer to the

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

19 applicant’s documentary evidence.”).

20 The inconsistencies and omissions, as well as the

21 demeanor finding and lack of reliable corroboration, provide

6 1 substantial evidence for the agency’s adverse credibility

2 determination. See

(b)(1)(B)(iii); Xiu Xia

3 Lin,

. The adverse credibility determination

4 is dispositive of asylum, withholding of removal, and CAT

5 relief because all three forms of relief were based on the

6 same factual predicate. See Paul v. Gonzales,

,

7 156–57 (2d Cir. 2006). Singh’s due process claim also fails

8 because the interview record was admitted into evidence in

9 his removal proceedings without objection from his counsel.

10 See Certified Admin. Record at 104–06 (Hr’g Tr.).

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