18

- 325 Singh v. Barr BIA Christensen , IJ A205 429 327



### 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 TO 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**  1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **1 t**  **h d**  **a y of**  **D e**  **c e**  **m b**  **e r**  **, two thousand**  **twenty .**  4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **DENNY CHIN ,**  8 **JOSEPH F. BIANCO ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **DALJIT SINGH,**  13 **Petitioner ,**  14 15
**v. 18** 
**- 325**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR P**  **ETITIONER :**  Dal jit Singh, pro se, S. Richmond 23 Hill , NY. 24 25 **FOR RESPONDENT:** Joseph H

. Hunt, Assistant 26 Attorney General; Jessica A. 27 Dawgert, Senior Litigation 28 Counsel , Jacob A. Bashyrov , Trial 29 Attorney , Office of Immigration 302 Litigation , United States 1 Department of Justice, Washington, 2 DC. 3 4 5 6 UPON DUE CONSIDERATION of this petition for review of a 7
Board of Immigration Appeals (“BIA”) decision, it is hereby 8
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DISMISSED in part and DENIED in part

. 10

Petitioner Daljit Singh , a native and citiz en of India , 11

seek s review of a January 23, 2018 , decision of the BIA 12
affirming a May 29, 2015 , decision of an I mmigration Judge 13

(“IJ”) d enying asylum, withholding of removal , and relief 14
under the Convention Against Torture (“CAT”). In re Daljit 15
Singh , No. A 20 5 429 327 ( B.I.A. J an 23, 2018 ), aff’g No. A205 16

429 327 (Immig. Ct. N.Y. City May 29 , 20 1 5 ). We assume the 17
parties’ familiarity with the underlying facts and procedural 18

his tory in this case. 19
Under the circumstances of this case, we have review ed 20

both the BIA’s and the IJ’s decisions. See Wangchuck v. 21
Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). W e 22
dismiss the petition as to asylu m. An alien is ineligible 23
for asylum “unless the alien demonstrates by clear and 24
convincing evidence that the application has been filed 253 within 1 year after the date of the alien’s arrival in the 1

United States.” 8 U.S.C. § 1158(a)(2)(B). Our jurisdiction 2
to review the agency’s findings regarding the timeliness of 3
an asylum application is limited to “constitutional claims or 4
questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id. 5

§ 1158(a)(3). T he agency ’s determination that Sing h was not 6

credi ble as to his date of entry into the United States is 7

based on fact

- finding and not subject to review

. See X iao 8
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333 (2d Cir. 9

2006) (adverse credibility determinations are factual 10
finding s ). 11
We deny the pe tition as to withholding of removal and 12

CAT relief because the adverse credibility determination is 13
supported by substantial evidence

. S ee 8 U.S.C. 14

§ 1252(b)(4); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 15
Cir. 2018) (reviewing adverse credibility determination under 16
substantial evidence standard)

. “Considering the totality 17
of the circumstances, and all relevant factors, a trier of 18
fact may base a credibility determination on the demeanor, 19
candor, or responsiveness o f the applicant or witness, . . . 20
the consistency between the applicant’s . . . written and 21
oral statements . . . , the internal consistency of each 224 statement, the consistency of such statements with other 1
evidence of record . . . and any inaccuracies or f alsehoods 2
in such statements, without regard to whether an 3
inconsistency, inaccuracy, or falsehood goes to the heart of 4
the applicant’s claim, or any other relevant factor.” 8 5

U.S.C. § 1158(b)(1)(B)(iii). “ We defer . . . to an IJ’s 6
credibility determination unless, from the totality of the 7
circumstances, it is plain that no reasonable fact

- finder 8
could make such an adverse credibility ruling.” Xiu Xia Lin 9
v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Ho ng Fei 10

Gao , 891 F.3d at 76. Singh alleged that he was attacked in 11
1990 and 2009 and arrested in 2010 on account of his support 12
for the Akali Dal Mann Party (“Mann Party”). W e find 13
substantial evidence for the adverse credibility 14
determination given Singh ’s lack of knowledge about his 15

party , inconsistencies between his testimony and documentary 16

evidence regarding the first attack , inconsistencies with in 17
his documentary evidence, and a lack of corroborat ion

. 18

The IJ reasonably relied on Singh’s lack of familiarity 19
and inability to provide basic info rmation about the Mann 20

P art y, particularly as some of the information he was 21
unfamiliar with at the hearing was included in his 225 application

. See 8 U.S.C. § 1158(b)(1)(B)(iii) (allowing 1

fact

- finder to rely on “demeanor, candor, or 2
responsiveness”); Rizal v. Gonzales , 442 F.3d 84, 90 (2d Cir. 3
2006) (explaining, in context of religious persecution claim, 4
that lack of doctrinal knowledge may render a claim suspec t 5
where the record indicates that the applicant should have 6
such knowledge). 7
The agency also reasonably relied on inconsistencies 8
between Singh’s testimony and documentary evidence about his 9

1990 attack. See 8 U.S.C. § 1158(b)(1)(B)(iii)

. Singh 10

testified that he was 23 or 24 at the time of th at attack, 11

but he submitted identity documents showing he would have 12
been only 13 years old at that time

. Moreover, Singh 13

testified that he did not know his assailants but his 14
application reported that his u ncles , who belonged to a rival 15
political party, were responsible

. The IJ was not required 16
to credit Singh’s explanation that he had not seen his uncles, 17
as he mentioned them in his application

. See Majidi v. 18

Gonzales , 430 F.3d 77, 80 (2d Cir. 2015) (“A petitioner must 19
do more than offer a plausible explanation for his 20
inconsistent statements to secure relief, he must demonstrate 216 that a reasonable fact

- finder would be compelled to credit 1
his testimony.” (internal quotation marks omitted )). 2
The agency also reasonably relied on inconsistences in 3
Singh’s documentary evidence

. See 8 U.S.C. 4

§ 1158(b)(1)(B)(iii) ; s ee Xiu Xia Lin , 534 F.3d at 167 5
(allowing fact

- finder to rely on even “collateral or 6
ancillary” inconsistencies so long as the “t otality of the 7
circumstances supports the adverse credibility 8
determination). Singh’s identity documents used differing 9
spellings of his name , and his age on his election card 10

conflicted with his birthdate on his birth certificate and 11

driver’s license. 12
The agency also reasonably concluded that Singh failed 13
to rehabilitate his testimony with reliable corroborating 14
evidence. “An applicant’s failure to corroborate his or her 15
testimony may bear on credibility, because the absence of 16

cor roboration in general makes an applicant unable to 17
rehabilitate testimony that has already been called into 18
question.” Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 19

2007) . The agency properly afforded diminished weight to his 20
documentary evidence bec ause it contained inconsistencies 21
(identity documents), did not corroborate specific incidents 227 of past harm and the author was unavailable for cross

1
examination (Mann Party letter), and were not contemporaneous 2
(Mann Party membership card). See Y.C. v. Ho lder , 741 F.3d 3
324, 332 (2d Cir. 2013) ( “We defer to the agency’s 4
determination of the weight afforded to an alien’s 5
documentary evidence.”) ; see also In re H

- L

- H

- & Z

- Y

- Z

- , 25 6
I. & N. Dec. 209, 215 (BIA 2010) (letters from alien’s friends 7
and family were insufficient to provide substantial support 8
for alien’s claims because they were from interested 9
witnesses not subject to cross

- examination), overruled on 10
other grounds by Hui Lin Huang v. Holder , 677 F.3d 130, 133

– 11
38 (2d Cir. 2012) . Singh also failed to provide reasonably 12
available corroborating evidence : he testified that he had 13

medical evidence of treatment after the 1990 attack, but he 14
did not produce it; and he did not provide let ters from any 15
family members, including form his father with whom he was 16
allegedly attacked in 2009 and who helped him gather 17
documentation for his application

. See 8 U.S.C. § 1252(b)(4) 18
(stating that a court may not reverse a finding that evi dence 19

is available unless a fact

- finder would be compelled to find 20
it unavailable); Chuilu Liu v. Holder , 575 F.3d 193, 198 (2d 21
Cir. 2009) (“[T]he alien bears the ultimate burden of 228 introducing [corroborating] evidence without prompting from 1

the IJ.”). Mo reover, none of Singh’s documents corroborated 2
the alleged attacks or arrest that formed the basis for his 3

claim

. 4
Although we decline to rely on Singh’s omission from his 5
application of his assertion that he reported his attacks to 6
the police, see Hong Fei Gao , 891 F.3d at 78, 82 , the 7

inconsistencies and corroboration issues discussed above 8
provide substantial evidence for the adverse credibility 9

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 10

Lin , 534 F.3d at 167 ; Gurung v. Barr , 929 F.3d 56, 62 (2d 11
Cir. 2019) (noting that remand to the agency is futile 12

“ whenever the reviewing panel is confident that the agency 13
would reach the same result upon a reconsideration cleansed 14

of errors”). The adverse credibility determination is 15
dispositive of withholding of removal and CAT relief because 16

both forms of relief are based on the same discredited factual 17
predicate. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 18
Cir. 2006). 19
For the foregoing reasons, the petition for review is 20
DISMISSED in part as to asylum and DENIED in remaining part 219 as to withholding of removal and CA T relief

. All pending 1
motions and applications are DENIED and stays VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe, 4 Clerk of Court 5