22-6041 Singh v. Garland BIA Wright, IJ A206 180 542

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 16th day of April, two thousand twenty- four.

PRESENT: ROBERT D. SACK, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________

GAGANDEEP SINGH, Petitioner,

v. 22-6041 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Jana Junuz, Law Offices of Jana Junuz, P.C., South Richmond Hill, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; David J. Schor, Senior Litigation Counsel; Kasey J. Chapman, 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 Gagandeep Singh, a native and citizen of India, seeks review of a

January 10, 2022 decision of the BIA affirming an October 10, 2018 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

Gagandeep Singh, No. A206 180 542 (B.I.A. Jan. 10, 2022), aff’g No. A206 180 542

(Immigr. Ct. N.Y.C. Oct. 10, 2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

Where the BIA agrees with the IJ’s conclusion that a petitioner is not

credible, we review both the IJ’s and the BIA’s decisions. See Guan v. Gonzales,

(2d Cir. 2005). We review adverse credibility determinations “under

2 the substantial evidence standard.” 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 demeanor, candor, or

responsiveness of the applicant[,] . . . 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); see also Hong Fei Gao,

. Singh asserted that

members of the Congress Party in India assaulted him twice because of his support

3 for the Bharatiya Janata Party (“BJP”). Substantial evidence supports the

agency’s determination that Singh was not credible. 1

The agency reasonably relied on omissions from Singh’s written statements,

inconsistencies stemming from his explanations, and his demeanor while

testifying. See

(b)(1)(B)(iii). For example, Singh’s affidavits did

not mention that he reported, or attempted to report, either assault to the police or

that he received medical treatment after the second assault. When he testified,

however, Singh claimed that he tried to report the first incident, but the police

either did not let him into the building or refused to write a report. As the IJ

found, Singh’s affidavits – which indicated that he was traumatized following the

first assault and was afraid to venture outside – contradicted his testimony that he

had tried to make a report to the police. And the agency was not compelled to

accept Singh’s less-than-clear explanations as to why he did not include this

1 Singh’s brief asserts that the agency lacked jurisdiction over his proceedings because his notice to appear did not contain the date and time of his hearing. See Pet. Br. at 2–3 & n.1. As an initial matter, Singh did not raise this issue before the agency, and therefore it is unexhausted. See Ud Din v. Garland,

, 419–20 & n.2 (2d Cir. 2023). Moreover, because he received a hearing notice and appeared at this hearing, his argument is foreclosed by Banegas Gomez v. Barr. See

(2d Cir. 2019) (“[A]n NTA that omits information regarding the time and date of the initial removal hearing is . . . adequate to vest jurisdiction in the Immigration Court, at least so long as a notice of hearing specifying this information is later sent to the alien.”); see also Chery v. Garland,

, 986–87 (2d Cir. 2021). 4 attempt to report to the police in his written statements. 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 omitted)).

In addition, although Singh’s affidavits did not mention medical treatment

following the second attack, his aunt’s affidavit stated that his father took him to

a doctor after this attack. Singh then created an inconsistency by testifying that

he both personally went to a village medical store for treatment of the bruises on

his face and received the medicine for his face from his father, who procured the

medicine from the store. While “omissions are [generally] less probative of

credibility than inconsistencies created by direct contradictions,” the agency

reasonably relied on the omissions in Singh’s affidavits given the lack of clarity in

his explanations for these omissions and the inconsistencies in his testimony.

Hong Fei Gao,

(quoting Yongguo Lai v. Holder,

(9th

Cir. 2014)).

The adverse credibility determination was bolstered by the agency’s

evaluation of Singh’s demeanor and the vagueness of his testimony on some

5 points. We give “particular deference” to an IJ’s demeanor finding because the IJ

is “in the best position to evaluate whether apparent problems in the . . . testimony

suggest a lack of credibility or, rather, can be attributed to an innocent cause such

as difficulty understanding the question.” Li Hua Lin v. U.S. Dep’t of Just.,

(2d Cir. 2006) (quoting Jin Chen v. U.S. Dep’t of Just.,

(2d

Cir. 2005)). Singh testified that he was Sikh and supported the BJP because it

fights against “wrongdoing” by the Congress Party, “help[s] poor people,” and

“fight[s] against atrocities.” Certified Admin. Record at 116. When pressed to

explain or provide details, Singh referenced only his own beating and atrocities

against Sikhs in 1984. See Shunfu Li v. Mukasey,

(2d Cir. 2008)

(“[A] finding of testimonial vagueness cannot, without more, support an adverse

credibility determination unless[, as here,] government counsel or the IJ first

attempts to solicit more detail.”). And when asked why his affidavits did not

include his purported attempt to report the incident to the police, he repeatedly

failed to answer the question.

In sum, the omissions, inconsistent explanations, lack of detailed or

responsive testimony, and Singh’s overall demeanor as observed by the IJ support

the agency’s adverse credibility determination. See

(b)(1)(B)(iii);

6 Xiu Xia Lin, 534 F.3d at 167–68; see also 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.”). The adverse credibility determination is

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

claims were based on the same factual predicate. See Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

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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