20-1518 Singh v. Garland BIA Hom, IJ A205 935 314 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 10th day of November, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, WILLIAM J. NARDINI, EUNICE C. LEE, Circuit Judges. _____________________________________

GURBRINDER SINGH, Petitioner,

v. 20-1518 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Sanjay Chaubey, Law Offices of Sanjay Chaubey, New York, NY.

FOR RESPONDENT: Bryan Boynton, Acting Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; John D. Williams, 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 Gurbrinder Singh, a native and citizen of

India, seeks review of an April 13, 2020 decision of the BIA

affirming a June 28, 2018 decision of an Immigration Judge

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

removal, and relief under the Convention Against Torture

(“CAT”). In re Gurbrinder Singh, No. A205 935 314 (B.I.A.

Apr. 13, 2020), aff’g No. A205 935 314 (Immig. Ct. N.Y.C.

June 28, 2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

We have reviewed both the BIA’s and IJ’s opinions. See

Yun-Zui Guan v. Gonzales,

(2d Cir. 2005).

Because Singh did not challenge the IJ’s denial of his asylum

claim as time barred before the BIA, and does not challenge

that finding before us, his asylum claim is unexhausted and

waived. See Karaj v. Gonzales,

, 119–20 (2d Cir. 2 2006) (exhaustion); Yueqing Zhang v. Gonzales,

,

541 n.1, 545 n.7 (2d Cir. 2005) (waiver of claims).

Accordingly, only the denial of withholding of removal and

CAT relief are before us. The applicable standards of review

are well established. See

(b)(4)(B) (“[T]he

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

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

(2d

Cir. 2018) (holding that adverse credibility determinations

are reviewed under a substantial evidence standard); Paloka

v. Holder,

(2d Cir. 2014) (reviewing factual

findings for substantial evidence and questions of law de

novo).

I. Adverse Credibilty Determination

As an intial matter, Singh argues that the IJ’s

consideration of an arrest for selling alcohol to a minor

that he testified to at the hearing tainted the adverse

credibility determination. However, the IJ did not cite the

arrest as a reason for the adverse credibility finding.

Singh has otherwise abandoned any challenge to the adverse

credibility determination by failing to challenge the actual

3 findings underlying it. See Yueqing Zhang,

n.1, 545 n.7.

Nonetheless, substantial evidence supports the adverse

credibility determination. “Considering the totality of the

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

base a credibility determination on . . . 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).

Singh alleged that he was assaulted and injured by

members of a rival political party. The IJ reasonably relied

on inconsistencies between Singh’s answers during his

credible fear interview and his hearing testimony about the

4 alleged assaults. See

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

the interview, Singh stated that during the first incident 15

people attacked and “stabbed” him while he was hanging

posters, which left him with “[t]he normal injuries,

bruises.” Singh also stated that, during a second incident,

he was hanging posters and ran away before a crowd with

baseball bats could reach him. In contradiction to these

statements, Singh testified at his hearing that he did not

suffer any injuries during the first incident and that he was

severely beaten with baseball bats during the second

incident. He also testified that he sought medical attention

for a broken foot after the second incident but did not

mention that injury or treatment during the interview.

These discrepancies constitute substantial evidence for

the adverse credibility determination because they concern

the only allegations of past persecution. See Xian Tuan Ye

v. Dep’t of Homeland Sec.,

(2d Cir. 2006)

(holding that a “material inconsistency” regarding alleged

past persecution was substantial evidence for an adverse

credibility determination (citation omitted)); see also Likai

Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a

5 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.”);

Siewe v. Gonzales,

(2d Cir. 2007) (“[A]

single false document or a single instance of false testimony

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

the alien's uncorroborated or unauthenticated evidence.”).

Thus, Singh has failed to demonstrate that no reasonable fact-

finder could make an adverse credibility finding. The

adverse credibility determination was dispositive of Singh’s

claim for asylum as well as withholding of removal and CAT

relief because both forms of relief were based on the same

factual predicate. See Paul v. Gonzales,

, 156–

57 (2d Cir. 2006).

II. Alleged Bias and Due Process

At the hearing, the IJ asked Singh if he had ever been

arrested in the United States and Singh admitted that he had

been arrested for selling alcohol to a minor. Singh suggests

that this information affected the IJ’s decision and that the

BIA compounded the IJ’s misunderstanding of his criminal

record when it referred to his “convictions.”

6 To the extent Singh raises a due process claim, he has

not shown the requisite prejudice. ”To establish a violation

of due process, an alien must show that []he was denied a

full and fair opportunity to present h[is] claims or that the

IJ or BIA otherwise deprived h[im] of fundamental fairness.”

Burger v. Gonzales,

(2d Cir. 2007) (citation

and quotation marks omitted). “Parties claiming denial of

due process in immigration cases must, in order to prevail,

allege some cognizable prejudice fairly attributable to the

challenged process.” Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (citation and quotation marks

omitted). Singh did not show prejudice here because neither

the IJ nor the BIA relied on his criminal history (actual or

mistaken) as part of the adverse credibility determination.

Singh’s argument that the IJ wrongly excluded his

documentary evidence that the charge was dismissed also

fails. The BIA considered the evidence he presented and

concluded it was not relevant to the adverse credibility

determination. Moreover, the IJ did not err in excluding

other evidence submitted to corroborate the asylum claim

because Singh submitted it on the day of the hearing in June

7 2018, well after the March 2017 deadline for evidence that

the IJ set in 2014. See Dedji v. Mukasey,

(2d Cir. 2008) (holding that “IJs are accorded wide latitude

in calendar management” (citation omitted)). Given that

Singh had more than two years to obtain and file evidence, he

has not shown that the IJ prevented him from presenting his

case. See

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

8