20-1145 Singh v. Garland BIA Ruehle, IJ A206 198 508

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 29th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 RICHARD C. WESLEY, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 GURPREET SINGH, 15 Petitioner, 16 17 v. 20-1145 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 26 FOR PETITIONER: Robert F. Graziano, Esq., 27 Buffalo, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Andrew O’Malley, 3 Senior Litigation Counsel; Sarai 4 M. Aldana, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Gurpreet Singh, a native and citizen of India,

14 seeks review of a March 10, 2020, decision of the BIA

15 affirming a December 3, 2018, decision of an Immigration Judge

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

17 removal, and relief under the Convention Against Torture

18 (“CAT”). In re Gurpreet Singh, No. A206 198 508 (B.I.A. Mar.

19 10, 2020), aff’g No. A206 198 508 (Immig. Ct. Buffalo Dec. 3,

20 2018). We assume the parties’ familiarity with the underlying

21 facts and procedural history.

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

23 Yun-Zui Guan v. Gonzales,

(2d Cir. 2005).

24 We review an adverse credibility determination under a

25 substantial evidence standard, Hong Fei Gao v. Sessions, 891

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

2 1 of fact are conclusive unless any reasonable adjudicator

2 would be compelled to conclude to the contrary,” 8 U.S.C.

3 § 1252(b)(4)(B).

4 “Considering the totality of the circumstances, and all

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

6 determination on . . . the inherent plausibility of the

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

8 applicant’s . . . written and oral statements,” and

9 inconsistencies within and between an applicant’s statements

10 and other evidence, “without regard to whether an

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

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

13 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

14 determination unless, from the totality of the circumstances,

15 it is plain that no reasonable fact-finder could make such an

16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

, 167 (2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence supports the adverse credibility

19 determination.

20 The agency reasonably relied on inconsistencies in

21 Singh’s testimony. See

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

22 testified inconsistently about his mistreatment by the

3 1 police, first alleging that he was “tortured” and “beaten

2 up,” and later clarifying that he meant that the police had

3 pushed him into a car. The IJ was not required to accept his

4 explanation that he had misunderstood what “beat up” meant

5 where it was also plausible that he was embellishing his

6 testimony. See Majidi v. Gonzales,

(2d Cir.

7 2005) (“A petitioner must do more than offer a plausible

8 explanation for his inconsistent statements to secure relief;

9 he must demonstrate that a reasonable fact-finder would be

10 compelled to credit his testimony.” (quotation marks

11 omitted)); Siewe v. Gonzales,

, 166–68 (2d Cir.

12 2007) (“Where there are two permissible views of the evidence,

13 the factfinder’s choice between them cannot be clearly

14 erroneous. Rather, a reviewing court must defer to that

15 choice so long as the deductions are not illogical or

16 implausible.” (internal citations and quotation marks

17 omitted)).

18 Further, the IJ reasonably relied on exaggerations in

19 Singh’s statements that his mother was “tortured” for

20 information about his whereabouts, given his admission that

21 he meant she was asked about his whereabouts and threatened,

22 and his concession that he had exaggerated. The agency did

4 1 not err in relying on the conflicting descriptions, given

2 that the allegations of more serious harm were significantly

3 more material in stating a claim for relief. Compare Yan

4 Chen v. Gonzales,

(2d Cir. 2005) (stating

5 that “[c]ertainly, beatings and torture can constitute

6 persecution”); with Gui Ci Pan v. U.S. Att’y Gen.,

(2d Cir. 2006) (courts have “rejected [persecution]

8 claims involving ‘unfulfilled’ threats”).

9 Singh’s contention that the IJ did not examine the

10 totality of the circumstances is belied by the record, which

11 reflects that the IJ also considered the absence of

12 corroborating evidence and assessed the persuasiveness of

13 Singh’s testimony. The assessment of corroboration provides

14 further support for the adverse credibility determination,

15 and Singh’s failure to proffer available evidence prevented

16 him from satisfying his burden of proof. Singh does not

17 challenge the IJ’s corroboration findings. Even if not

18 waived, the record supports the IJ’s conclusion.

19 Singh failed to present reasonably available evidence

20 and, when given the opportunity to explain this failure, did

21 not provide a compelling explanation for the lack of evidence.

22 The absence of evidence prevented Singh from rehabilitating

5 1 his claim in light of the inconsistencies and exaggeration.

2 See Biao Yang v. Gonzales,

(2d Cir. 2007)

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

4 may bear on credibility, because the absence of corroboration

5 in general makes an applicant unable to rehabilitate

6 testimony that has already been called into question.”). And

7 where, as here, an applicant’s credibility is in question, he

8 cannot meet his burden of proof without reasonably available

9 corroboration. See

(b)(1)(B)(ii). The IJ

10 identified the missing evidence—letters from Singh’s mother

11 and friends in India, Facebook messages he allegedly received

12 warning him that Indian authorities continued to look for

13 him, and police reports and hospital records. See Wei Sun v.

14 Sessions,

, 29–31 (2d Cir. 2018). Singh did not

15 establish that the evidence was unavailable, as he did not

16 support his allegation that Indian authorities would find out

17 if his family and friends wrote letters, particularly given

18 his allegation that he could have, but did not, produce their

19 Facebook messages, and he did not assert that he attempted to

20 obtain other evidence. See

(b)(4) (“No court

21 shall reverse a determination made by a trier of fact with

22 respect to the availability of corroborating evidence . . .

6 1 unless the court finds . . . that a reasonable trier of fact

2 is compelled to conclude that such corroborating evidence is

3 unavailable.”).

4 In sum, Singh’s inconsistent and exaggerated testimony

5 called his credibility into question, and he does not

6 challenge the IJ’s findings regarding his lack of

7 corroboration; thus, he has not demonstrated that the agency

8 erred in concluding that he failed to meet his burden of

9 proof. See

(b)(1)(B)(ii), (iii); Xiu Xia Lin,

10 534 F.3d at 167. Contrary to Singh’s claim that the IJ was

11 required to independently analyze his CAT claim, where, as

12 here, all forms of relief rely on the same factual predicate,

13 the agency is not required to engage in a separate analysis.

14 See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

15 Singh’s reference to one piece of country conditions evidence

16 that Sikhs who are militant sympathizers are “in some cases”

17 subject to “detention and torture” did not establish that he

18 would more likely than not be tortured, particularly given

19 his lack of credibility about his past harm. Petitioner’s

20 Br. at 10.

21

22

7 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

8