21-6651 Singh v. Garland BIA Cassin, IJ A208 922 595

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 20th day of March, two thousand twenty-four.

PRESENT: RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, MYRNA PÉREZ, Circuit Judges. _____________________________________

BALJINDER SINGH, Petitioner,

v. 21-6651 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Heena Arora, Esq., Law Offices of Heena Arora, P.C., Richmond Hill, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Carl H. McIntyre, Assistant Director; Justin R. Markel, Senior Litigation Counsel, 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 Baljinder Singh, a native and citizen of India, seeks review of a

December 1, 2021 decision of the BIA affirming a February 25, 2019 decision of an

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

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

Baljinder Singh, No. A 208 922 595 (B.I.A. Dec. 1, 2021), aff’g No. A 208 922 595

(Immigr. Ct. N.Y.C Feb. 25, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

Because the BIA summarily affirmed the IJ’s decision without opinion, we

have reviewed the IJ’s decision as the final agency determination. See Shunfu Li

v. Mukasey,

(2d Cir. 2008). We review the agency’s factual

2 findings, including adverse credibility determinations, for substantial evidence.

Hong Fei Gao v. Sessions,

(2d Cir. 2018). “[T]he 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, the

consistency of such statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements, 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,

. Substantial evidence supports the agency’s adverse credibility

determination.

3 First, the IJ reasonably relied on an inconsistency between Singh’s testimony

and his written statement regarding whether members of opposing political

parties threatened him before the first alleged assault. See

(b)(1)(B)(iii). Singh wrote that members of opposing parties threatened

him to discourage him from supporting the Shiromani Akali Dal Amritsar

(“Mann”) Party and then attacked him twice—in June and August 2015—when

those threats failed. But at his hearing, Singh denied receiving threats before the

first attack. The agency was not compelled to credit Singh’s explanations that he

did not take the threats seriously or may not have understood the question; Singh’s

response was initially unequivocal and the question posed was straightforward.

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.” (quotation marks omitted)). Singh further attempts to characterize

his inconsistent testimony as merely containing an “omission” of an instance of

persecution, but he expressly denied receiving threats prior to the first assault.

Second, the IJ reasonably relied on an inconsistency regarding the weapons

involved in the second assault. See

(b)(1)(B)(iii). Singh’s written

4 statement described the second assault as occurring when a group of men

approached him with “hockey sticks,” and then beat him “with sticks, fists and

kicks” and “baseball bats.” Certified Administrative Record at 351. He did not

mention a baseball bat when testifying about this assault, and then denied being

hit with a bat.

at 105–06. His explanation that he may not have recalled this

detail did not account for why he would have remembered the fact when

preparing his application, but not at his hearing. His new explanation—that he

could have told his attorney that there was a baseball present, and the attorney

could have misinterpreted that information and written in the statement that he

was beaten with a baseball bat—is not compelling. He did not offer it to the IJ,

and it is belied by the record because Singh stated during his credible fear

interview that he was beaten with a baseball bat. Further, contrary to Singh’s

argument, this inconsistency is not trivial because it directly relates to the claim of

past persecution. In any event, the agency may rely on even minor

inconsistencies so long as the “totality of the circumstances” supports the adverse

credibility determination. Xiu Xia Lin,

(quoting

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

5 Third, the IJ reasonably relied on an inconsistency regarding the extent of

the medical treatment Singh received after the second assault. See

(b)(1)(B)(iii). During his credible fear interview, Singh said that he visited

a village doctor’s office for 20 minutes, where he received pain medication and

advice to treat his injuries with heat pads; but he testified that he was at the office

for five to seven hours. Singh argues that there is no inconsistency because he

was actively treated for 20 minutes, and was then given a bed where he received

“glucose” intravenously for a longer period. This explanation does not resolve

the discrepancy because his statement during the credible fear interview was

about how long he stayed at the office, not the duration of his interaction with a

doctor, and he did not mention receiving the intravenous glucose—which is a fact

he would be expected to disclose when disclosing the less remarkable fact that he

was advised to use a heat pad. 1 See Hong Fei Gao,

(“[T]he probative

value of a witness’s prior silence on particular facts depends on whether those

facts are ones the witness would reasonably have been expected to disclose.”).

1 Singh does not otherwise challenge the agency’s reliance on the credible fear interview record. The agency may consider statements at a credible fear interview when assessing credibility so long as “the record of [the] credible fear interview displays the hallmarks of reliability.” Ming Zhang v. Holder,

(2d Cir. 2009). 6 Fourth, the IJ reasonably relied on an internal inconsistency in Singh’s

testimony and an inconsistency with his written statement regarding who

reported the second assault to the police. See

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

wrote that he went to the police with his grandfather and a friend to lodge a

complaint; however, at the hearing, he initially denied going, then changed his

testimony after being reminded of his written statement. The IJ was not required

to accept his explanation that he did not understand the question. 2 See Majidi,

; see also

at 81 n.1 (observing that the IJ “is in the best position to discern

. . . whether a question . . . was . . . confusing or well understood by those who

heard it . . . and whether inconsistent responses are the product of innocent error”

(quotation marks omitted)).

Finally, the absence of reliable corroboration further bolsters the adverse

credibility determination. 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

2 As the IJ noted, Singh’s mother affirmed that he went to the police, without mentioning that anyone went with him. The omission has limited probative value, but his mother’s statement does not reconcile his inconsistent testimony. See Hong Fei Gao, 891 F.3d at 78–79, 81 (discussing the probative value of omissions and an applicant’s failure to explain omissions from third-party statements). 7 unable to rehabilitate testimony that has already been called into question.”). The

IJ reasonably gave Singh’s documentary evidence little weight because a letter

from his doctor was undated, neither the doctor nor the other affiants were

available for cross-examination, and Singh did not provide proof of mailing of the

documents from India. See Y.C. v. Holder,

(2d Cir. 2013) (“We

generally defer to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”); Likai Gao v. Barr,

(2d Cir.

2020) (deferring to IJ’s decision to accord “little weight” to letters from declarants

who were “interested parties” and not available for cross-examination).

Given the multiple inconsistencies and the lack of reliable corroboration,

substantial evidence supports the adverse credibility determination. See Likai

Gao,

n.8 (“[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.”); Xiu Xia Lin,

; Biao Yang,

. The adverse credibility determination is

dispositive of asylum, withholding of removal, and CAT relief because all three

forms of relief relied on the same factual predicate. See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

8 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

9