22-6026 Singh v. Garland BIA Wright, IJ A205 138 192

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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 24th day of January, two thousand 4 twenty-four. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 JATINDER SINGH, 14 Petitioner, 15 16 v. 22-6026 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Heena Arora, Esq., Richmond Hill, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Anthony P. Nicastro, 3 Assistant Director; Dana M. Camilleri, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of

8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

9 DECREED that the petition for review is DENIED.

10 Petitioner Jatinder Singh, a native and citizen of India, seeks review of a

11 December 13, 2021, decision of the BIA affirming a February 28, 2019, decision of

12 an Immigration Judge (“IJ”) denying his application for asylum, withholding of

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

14 Singh, No. A 205 138 192 (B.I.A. Dec. 13, 2021), aff’g No. A 205 138 192 (Immig. Ct.

15 N.Y. City Feb. 28, 2019). We assume the parties’ familiarity with the underlying

16 facts and procedural history.

17 We have reviewed both the IJ’s and the BIA’s decisions. See Wangchuck v.

18 Dep’t of Homeland Sec.,

(2d Cir. 2006). We review factual findings

19 for substantial evidence, and we review questions of law and the application of

20 law to fact de novo. Hong Fei Gao v. Sessions,

(2d Cir. 2018). “[T]he

21 administrative findings of fact are conclusive unless any reasonable adjudicator 2 1 would be compelled to conclude to the contrary.”

(b)(4)(B).

2 “The testimony of the applicant may be sufficient to sustain the applicant’s

3 burden without corroboration, but only if the applicant satisfies the trier of fact

4 that the applicant’s testimony is credible, is persuasive, and refers to specific facts

5 sufficient to demonstrate that the applicant is a refugee.”

§ 1158(b)(1)(B)(ii).

6 Accordingly, “in some cases . . . an applicant may be generally credible but his

7 testimony may not be sufficient to carry the burden of persuading the fact finder

8 of the accuracy of his claim of crucial facts if he fails to put forth corroboration that

9 should be readily available.” Wei Sun v. Sessions,

(2d Cir. 2018);

10 see also Pinel-Gomez v. Garland,

, 529–30 (2d Cir. 2022) (explaining that

11 the agency may find testimony credible but “still decide that the testimony falls

12 short of satisfying the applicant’s burden, either because it is unpersuasive or

13 because it does not include specific facts sufficient to demonstrate that the

14 applicant is a refugee” (quotation marks omitted)). “Where the trier of fact

15 determines that the applicant should provide evidence that corroborates

16 otherwise credible testimony, such evidence must be provided unless the

17 applicant does not have the evidence and cannot reasonably obtain the evidence.”

18

(b)(1)(B)(ii).

3 1 Thus, a lack of corroboration can be an independent basis for the denial of

2 relief if the agency identifies reasonably available evidence that should have been

3 presented. See id.; Wei Sun, 883 F.3d at 27–29. Before denying a claim solely on

4 an applicant’s failure to provide corroborating evidence, the IJ must, either in his

5 or her decision or otherwise in the record, “(1) point to specific pieces of missing

6 evidence and show that it was reasonably available; (2) give the applicant an

7 opportunity to explain the omission; and (3) assess any explanation given.” Wei

8 Sun,

. Where the IJ has identified the missing evidence, we may

9 reverse the agency’s decision only if “a reasonable trier of fact is compelled to

10 conclude that such corroborating evidence is unavailable.”

(b)(4);

11 see Yan Juan Chen v. Holder,

(2d Cir. 2011). The agency did not

12 err in denying asylum and withholding of removal for lack of corroboration.

13 Singh testified that members of an opposing political party assaulted him

14 and threatened to kill him twice because of his religion and political opinion, that

15 the police threatened to charge him with a crime when he attempted to report the

16 first assault, and that his assailants came to his family’s house looking for him

17 after he left India. But his limited documentary evidence corroborated little of

18 that account: only that he was a Sikh and supporter of the Akali Dal Simranjit

4 1 Singh Mann Party (“Mann Party”), and that he was treated in a clinic for injuries

2 at the time of the second alleged assault. Notwithstanding Singh’s testimony

3 that one or both of his parents witnessed these aspects of his alleged persecution,

4 Singh offered no corroboration of the injuries resulting from the first beating and

5 their home treatment; of his unsuccessful effort, accompanied by his father, to

6 report that incident to the police; of the fact that the injuries treated at the clinic

7 were the result of a beating; of the statements of his assailants in his parents’

8 presence attributing the beating they inflicted to his religion and political

9 affiliation; or of his assailants’ subsequent efforts to find him after he had left

10 India.

11 The agency did not err in requiring additional corroboration. Singh argues

12 that his credible testimony was sufficient to satisfy his burden on its own, and that

13 the agency overlooked or gave insufficient weight to his corroborating evidence.

14 However, “we presume that an IJ has taken into account all of the evidence before

15 him [or her], unless the record compellingly suggests otherwise.” Xiao Ji Chen v.

16 U.S. Dep’t of Just.,

, 336 n.17 (2d Cir. 2006). As outlined above, the

17 agency is entitled to require corroboration of even credible testimony, and Singh’s

18 documentary evidence failed to corroborate material aspects of his claim. The

5 1 burden is on the petitioner to introduce corroborating evidence “without

2 prompting from the IJ.” Wei Sun,

(quotation marks omitted). And

3 the record supports the IJ’s observation that some of Singh’s testimony was vague,

4 such that it was insufficiently persuasive without corroboration. For example,

5 Singh testified that he attended more rallies in the months preceding the second

6 assault, but he was not responsive when repeatedly asked to explain how

7 frequently he attended rallies before and after this increase.

8 Further, the agency identified specific missing evidence that could have

9 corroborated Singh’s testimony: statements from his mother (who is said to have

10 treated his injuries from the first assault and witnessed part of the second assault)

11 and father (who is said to have witnessed the police officer’s refusal to take his

12 report of the first assault, part of the second assault, and Singh’s medical treatment

13 at the clinic). Singh was given an opportunity to explain the absence of such

14 statements at his hearing. And his explanations do not compel the conclusion

15 that he could not have obtained statements from his parents. See 8 U.S.C.

16 § 1252(b)(4). Singh testified that his father was hospitalized in the months

17 immediately preceding his February 2019 hearing, but he did not allege that his

18 mother was incapacitated, and he did not establish that he could not have obtained

6 1 a statement from his father before his hospitalization. Singh’s asylum application

2 had been pending since 2012, and he testified that his father had gathered his other

3 documentary evidence from India in about 2015, but that he had not thought to

4 ask his father to write a statement. And while Singh alleged that prior counsel

5 failed to instruct him to make such a request, he did not file a disciplinary

6 complaint or explain his failure to do so; and he had retained his new counsel by

7 September 2018 (months before his father’s alleged December 2018

8 hospitalization). See Matter of Lozada,

(B.I.A. 1988)

9 (requiring party asserting ineffective assistance of counsel to (1) submit an

10 affidavit detailing the agreement with former counsel, (2) inform counsel of

11 allegations and give counsel an opportunity to respond, and (3) file a complaint

12 with an appropriate disciplinary authority, or explain why a complaint was not

13 filed); see also Garcia-Martinez v. Dep’t of Homeland Sec.,

(2d Cir.

14 2006) (holding that an “applicant . . . who has failed to comply substantially with

15 the Lozada requirements . . . forfeits [his] ineffective assistance of counsel claim in

16 this Court” (quotation marks omitted)).

17 The agency’s corroboration finding is bolstered by its observations about

18 other gaps in the record. As the IJ noted, Singh provided a letter from the Mann

7 1 Party to confirm his role and character, and he testified that its author knew about

2 both attacks. When asked why the letter did not corroborate the attacks, he

3 offered no explanation for the omission. 1 And even Singh’s own written

4 statement, drafted a few days before his hearing with the benefit of new counsel’s

5 advice, failed to corroborate his testimony that his assailants came to his home

6 looking for him after he fled India. Singh’s explanation that he omitted this

7 information because he had not mentioned it during a prior interview was not

8 compelling, particularly as he conceded that he understood that this information

9 was important support for his claim that he feared return to India.

10 In sum, the agency did not err in finding that Singh failed to satisfy his

11 burden of proof for asylum because the record does not compel the conclusion that

12 evidence to corroborate his allegations of persecution was unavailable. See

13

(b)(4). That finding is also dispositive of withholding of removal

14 because both claims were based on the factual predicate. See Lecaj v. Holder, 616

, 119–20 (2d Cir. 2010). As to CAT relief, Singh’s argument that the IJ

1 Singh’s current argument here about the letter’s reliability is misplaced. The agency could only rely on the letter as evidence of matters it addressed; and Singh has not shown that a letter corroborating the assaults from the same author was unavailable, as he received one letter, the author knew about the assaults, and he could not give a reason why the author did not mention them. 8 1 failed to separately consider his claim is belied by the record, and this argument

2 fails to engage with the BIA’s reasoning in affirming the denial of CAT protection.

3 See Yueqing Zhang v. Gonzales,

, 541 n.1 (2d Cir. 2005) (issues not

4 discussed in a petitioner’s brief are considered abandoned or waived).

5 Substantial evidence supports the agency’s conclusion that Singh failed to

6 demonstrate that he is “more likely than not to be tortured “by or at the instigation

7 of or with the consent or acquiescence of a public official or other person acting in

8 an official capacity,” as required for CAT protection.

(c)(2),

9 1208.18(a)(1); see Hui Lin Huang v. Holder,

(2d Cir. 2012) (“A

10 determination of what will occur in the future and the degree of likelihood of the

11 occurrence has been regularly regarded as fact-finding . . . .”). As discussed

12 above, Singh failed to establish that he suffered past harm, that he was threatened

13 with future harm, or that the police refused to protect him from such harm.

14 Moreover, abuses inflicted by members of a political party are generally not

15 equivalent to abuses by a public official. See Singh v. Garland,

(2d

16 Cir. 2021) (finding that the agency was not “required to attribute an attack by

17 members of a regional party in Punjab to the national government of India” or to

18 “local authorities”); see also Lecaj, 616 F.3d at 119–20 (when petitioner fails to

9 1 demonstrate likelihood of persecution required for grant of asylum, he

2 “necessarily fails” to demonstrate the likelihood of torture required for CAT

3 relief).

4 For the foregoing reasons, the petition for review is DENIED. All pending

5 motions and applications are DENIED and stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

10