21-6145 Singh v. Garland BIA Factor, IJ A208 927 626

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 10th day of May, two thousand twenty- four.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, MYRNA PÉREZ, Circuit Judges. _____________________________________

SHARNDEEP SINGH, Petitioner,

v. 21-6145 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard W. Chen, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Nancy E. Friedman, Senior Litigation Counsel; Andrew Oliveira, 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.

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

February 11, 2021, decision of the BIA affirming a March 21, 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

Sharndeep Singh, No. A208 927 626 (B.I.A. Feb. 11, 2021), aff’g No. A208 927 626

(Immig. Ct. N.Y. City Mar. 21, 2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and supplemented by the

BIA, i.e., without the alternative internal relocation finding that the BIA declined

to reach, but including the BIA’s additional discussion of Singh’s CAT claim, and

2 all of the grounds for the IJ’s adverse credibility determination. 1 See Hong Fei Gao

v. Sessions,

(2d Cir. 2018) (reviewing grounds not “explicitly

discussed by the BIA,” but not rejected (quotation marks omitted)); Xue Hong Yang

v. U.S. Dep’t of Just.,

(2d Cir. 2005) (reviewing IJ’s decision “as

modified by the BIA’s decision”); Yan Chen v. Gonzales,

(2d Cir.

2005) (reviewing IJ’s decision “as supplemented by the BIA”). We review the

agency’s factual findings, including adverse credibility determinations, for

substantial evidence, and we review questions of law and the application of fact

to law de novo. Hong Fei Gao,

. “[T]he administrative findings of fact

are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.”

(b)(4)(B).

Congress has specified how a credibility determination can be made:

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 or witness . . . , the consistency between the applicant’s or witness’s written and oral statements . . . , 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.

1 Singh’s challenges to the internal relocation finding are therefore misplaced. 3

(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.’” Hong Fei Gao,

(quoting Xiu Xia Lin v. Mukasey,

(2d Cir. 2008)). Substantial

evidence supports the IJ’s finding that Singh was not credible as to his claim that

he was threatened and beaten by members of opposing political parties in India

because of his support for the Shiromani Akali Dal Mann Party (“Mann Party”).

First, the IJ reasonably relied on Singh’s demeanor, noting that he was

nonresponsive and evasive on cross-examination. See

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

We generally defer to such findings because an IJ is “in the best position to

evaluate whether apparent problems in the witness’s testimony suggest a lack of

credibility or, rather, can be attributed to an innocent cause such as difficulty

understanding the question.” Jin Chen v. U.S. Dep’t of Just.,

(2d

Cir. 2005).

Second, the IJ reasonably relied on an inconsistency between Singh’s

testimony and his neighbor’s affidavit as to whether the neighbor witnessed his

assaults. See

(b)(1)(B)(iii). The neighbor affirmed that he witnessed

Singh being threatened, and that he had learned from Singh’s family that Singh

4 was subsequently assaulted on two occasions. But Singh testified that the

neighbor either witnessed both assaults or the threat and one assault. Singh’s

explanation—that his neighbor recorded his account through an interpreter—did

not compel the IJ to accept that explanation. 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.” (citation and

internal quotation marks omitted)). We have cautioned against giving undue

weight to an applicant’s failure to explain omissions from a third-party statement

where those omissions do not create an inconsistency with the applicant’s account.

Hong Fei Gao,

. But here, Singh’s neighbor’s statement contradicted

Singh’s testimony about the basis for the neighbor’s knowledge of the assault.

Third, the IJ reasonably relied on an inconsistency regarding the year Singh

was assaulted. See

(b)(1)(B)(iii). Despite testifying that he left India

in February 2016, Singh repeatedly testified on direct examination that he was

assaulted and threatened in India in November and December 2016. Then, on

cross-examination, he stated that he was harmed in 2015, which was consistent

with his initial interview and application. The agency was not required to accept

5 Singh’s explanation that he misspoke because he was nervous. See Majidi, 430 F.3d

at 80–81; see also Siewe v. Gonzales,

(2d Cir. 2007) (“Decisions as

to which of competing inferences to draw are entirely within the province of the

[IJ].” (alteration, citation and internal quotation marks omitted)). Although this

discrepancy would not, in itself, provide substantial evidence for an adverse

credibility determination, the agency properly considered the “cumulative effect”

of this testimony with its other findings. Xiu Xia Lin,

(holding that

“an IJ may rely on any inconsistency or omission in making an adverse credibility

determination as long as the ‘totality of the circumstances’ establishes that an

asylum applicant is not credible.” (quoting

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

Fourth, the IJ reasonably relied on Singh’s omission from his original

written statement of one of the two alleged assaults. See

(b)(1)(B)(iii). In his original statement, Singh described an incident when

armed supporters of rival parties surrounded him and threatened him and an

incident when a group of rival party supporters beat him with sticks. In his

supplemental statement, he added that rival party supporters also assaulted him

between those two incidents. Singh gave shifting explanations for this omission.

In his supplemental statement, he said that the contents of his original statement

6 were not read to him in a language he understood, and he was not aware that the

incident had been omitted. But at his hearing, he said that he had been reluctant

to reveal this assault—which differed from the subsequent assault because his

assailants tore off clothes—to his brother, who either prepared the statement or

arranged for someone to prepare it. The agency was not required to credit these

contradictory explanations. See Majidi,

.

Finally, Singh argues that the agency overlooked or gave too little weight to

country conditions evidence that confirmed the plausibility of his account. But

“we presume that [the agency] has taken into account all of the evidence before

[it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t

of Justice,

, 336 n.17 (2d Cir. 2006), and we do not require the agency to

“expressly parse or refute on the record each individual argument or piece of

evidence offered by the petitioner,” Jian Hui Shao v. Mukasey,

(2d

Cir. 2008) (citation and internal quotation marks omitted). The record does not

compel the conclusion that the IJ ignored country conditions evidence, particularly

as the IJ noted that this evidence was in the record and stated that all evidence had

been considered, even if not explicitly discussed.

Considered cumulatively, the demeanor and inconsistency findings provide

7 substantial evidence for the adverse credibility determination. See 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.”); Xiu Xia Lin,

. Because Singh’s claims for asylum, withholding of removal, and CAT relief

all rested on the same factual predicate, the adverse credibility determination was

dispositive. 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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