22-6304 Singh v. Garland BIA Sichel, IJ A202 017 683

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 25th day of November, two thousand twenty-four.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

PALWINDER SINGH, Petitioner,

v. 22-6304 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard W. Chen, Esq., New York, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jennifer R. Khouri, Senior Litigation Counsel; Brandon T. Callahan, 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. 1

Petitioner Palwinder Singh, a native and citizen of India, seeks review of a

May 25, 2022 decision of the BIA, affirming a March 20, 2019 decision of an

Immigration Judge (“IJ”), which denied his application for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). In re

Palwinder Singh, No. A202 017 683 (B.I.A. May 25, 2022), aff’g No. A202 017 683

(Immig. Ct. N.Y. City Mar. 20, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

Under the circumstances, we have reviewed the IJ’s decision as modified by

the BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005).

We review an adverse credibility determination “under the substantial evidence

1 Judge Newman dissents. 2 standard,” Hong Fei Gao v. Sessions,

(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 consistency between

the applicant’s or witness’s written and oral statements (whenever made and

whether or not under oath, and considering the circumstances under which the

statements were made), 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.”

§ 1158(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,

.

Singh alleged that Congress Party members twice threatened and beat him

on account of his support for the Shiromani Akali Dal Mann Party. Substantial

evidence supports the agency’s determination that Singh was not credible.

3 The agency reasonably relied on inconsistencies in Singh’s testimony and

application regarding his alleged attacks. See

(b)(1)(B)(iii); 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.”).

Singh’s testimony conflicted with his application as to whether his first attack

occurred on October 26, 2014, or on November 5, 2014, and he submitted

conflicting supporting affidavits that reflected the same inconsistency. Singh did

not compellingly explain the inconsistency, particularly as he offered no reason

why a supporting affidavit would contain the same error as his testimony. 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 and citation omitted)).

The agency also reasonably relied on a discrepancy as to whether Singh’s

attackers fled by car or on foot. See

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

his asylum application that, after the first alleged attack, his attackers drove away

in their car. He testified, however, that after the first attack, his attackers walked

4 away from the scene, and after the second attack, they left in a vehicle. Singh did

not compellingly explain this inconsistency. See Majidi,

.

Having questioned Singh’s credibility, the agency reasonably relied further

on his failure to rehabilitate his testimony with reliable corroborating evidence.

See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure

to corroborate his or her testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to rehabilitate testimony that

has already been called into question.”). As previously noted, the affidavits from

Singh’s family members and the sarpanch conflicted with each other and with

some of Singh’s statements and thus did not reliably corroborate his claims. See

Y.C. v. Holder,

(2d Cir. 2013) (“We defer to the agency’s

determination of the weight afforded to an alien’s documentary evidence.”).

Moreover, the agency reasonably accorded the affidavits little weight because

none of the affiants were available for cross-examination. Likai Gao,

(“[T]he IJ acted within her discretion in according [the affidavits] little weight

because the declarants (particularly [the petitioner’s] wife) were interested parties

and neither was available for cross-examination.”).

5 The inconsistencies and lack of reliable corroboration provide substantial

evidence for the agency’s adverse credibility determination. See

(b)(1)(B)(iii); Likai Gao,

n.8; Xiu Xia Lin, 524 F.3d at 167; Biao

Yang,

. The adverse credibility determination is dispositive of

asylum, withholding of removal, and CAT relief because all three claims are based

on the same factual predicate. See Hong Fei Gao,

(“Where the same

factual predicate underlies a petitioner’s claims for asylum, withholding of

removal, and protection under the CAT, an adverse credibility determination

forecloses all three forms of relief.”).

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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