NOT RECOMMENDED FOR PUBLICATION 

File Name: 17a0074n.06 

Nos. 15-4332/16-3585 

UNITED STATES COURTS OF APPEALS 

FOR THE SIXTH CIRCUIT

SIMARJIT SINGH, 

 Petitioner, 

v. 

SALLY Q. YATES, Acting Attorney General of the 

United States, 

 Respondent. 

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS 

BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges. 

HELENE N. WHITE, Circuit Judge. Simarjit Singh is a native and citizen of India who 

entered the United States in 2010 without inspection. He applied, unsuccessfully, for asylum, 

withholding of removal, and protection under the Convention Against Torture (CAT). His 

appeal to the Board of Immigration Appeals (BIA) was also unsuccessful and he now petitions 

for review of the BIA’s final order of removal. He separately seeks review of the BIA’s denial 

of his motion to reopen his removal proceedings for administrative closure. We DENY both 

petitions. 

I

A

Singh is a member of the Sikh faith and was born into a “politically active family” in 

Punjab, India. A.R. 343. He entered the United States without inspection or parole in August 

2010. After a credible-fear interview, the Department of Homeland Security (DHS) began 
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removal proceedings. Singh conceded removability, but requested asylum, withholding of 

removal, and protection under the CAT. 

 Singh’s asylum application centered on his joining and actively participating in the 

Shiromani Akali Dal Amritsar Party (Akali Dal), a Sikh-based political party in India. Singh 

claims that as a result of his activities with Akali Dal (which included attending rallies and 

postering), he was attacked twice by members of the Congress Party, first in October 2009 and 

again in March 2010. His asylum application asserted that on the first occasion, he was stopped 

by six or seven unidentified persons whom he recognized as Congress Party members, who told 

him to join their party. When he refused, they fired a rifle close to him, prompting him to 

abandon his motorbike and flee. Singh’s application asserted that on the second occasion, he 

was confronted by Congress Party members while he was at a party in a park with friends. After 

the Congress Party members began shooting rifles in the air, he and his friends fled. Singh 

asserted that he could not obtain protection from local police, who were bribed by the Congress 

Party. After the second incident, Singh fled India by plane to Vietnam in June 2010 and took a 

boat to Mexico before entering the United States. 

 Over a year after making his first application, Singh filed an amended application 

changing his story regarding the two incidents. In his original statements, these incidents ended 

with his running away, but the amended application describes far more serious encounters, 

including that Singh was confronted by Congress Party member Kartar Singh (Kartar), who 

warned Singh that he would face “dire consequences” if he refused to join the Congress Party; 

that Kartar was among the group of six or seven who first stopped Singh while he rode his 

motorbike; that Singh did not flee after the rifle was fired, but was rather held down and beaten 

by the group with their bare hands and sticks; that Singh lost consciousness and later awoke at 
Nos. 15-4332/16-3585, Singh v. Yates 

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home and was treated by a village nurse; that local police refused to accept his report against 

Kartar, noting that Kartar had already made a report against Singh; and that after leaving the 

police station, two of Singh’s attackers approached him and demanded he join the Congress 

Party. Regarding the second incident in the park, the amended application states it occurred in 

late March and that although many of Singh’s friends fled, he was grabbed by the Congress Party 

members, beaten, and told that he had two months to join their party or else he would be killed 

and his house destroyed. Singh then fled Punjab and went to Delhi with his father. In his 

amended application, Singh asserts that he left India in June 2010, and traveled through 

Bangkok, Vietnam, Moscow, Cuba, Paris, Guatemala, and Mexico en route to the United States, 

which he entered less than two months after leaving India. He explained that his account of his 

travel changed after he saw films on the Internet featuring those places, which he recognized as 

places he had been to on his journey to this country. 

After Singh testified at his asylum hearing, the immigration judge (IJ) commented that he 

leaned toward denying Singh’s application and was considering the Government’s request that 

the application be held frivolous. As potential grounds for such a finding, the IJ noted over a 

dozen implausible inconsistencies between Singh’s applications and documentation, his 

testimony, and his statements to an asylum officer. Among these inconsistencies were 

(1) whether the second incident at the park happened in the first or final week of March 2010 

(with Singh eventually admitting he did not know when in March the incident happened), 

(2) Singh’s failure to mention his adversary Kartar’s presence at the March incident in his 

application followed by testimony that Kartar was indeed present, (3) the submission of a 

doctor’s report that misstated Singh’s age and contradicted his testimony that he never saw a 

doctor in connection with the attacks, and (4) the failure of a local elected official’s affidavit to 
Nos. 15-4332/16-3585, Singh v. Yates 

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vouch for Singh’s membership in Akali Dal (instead merely noting his family’s support for the 

party). 

The IJ allowed Singh a continuance to explain these and other inconsistencies, 

specifically to present proper documentation corroborating his story. At a subsequent hearing 

over seven months later, Singh appeared without additional documentation, explaining that he 

could not obtain it because his father, a farmer, had been hospitalized for months following a car 

accident and was otherwise busy with the growing season. Singh did not, however, provide 

documentation confirming his father’s accident or hospitalization, although he stated it was the 

subject of an Internet-available news article. Singh further explained that he was unable to 

obtain corroborating documentation through anyone else in India. The IJ continued the hearing 

until February 2014 so that Singh’s father could be discharged from the hospital and send the 

documentation. At the next hearing, Singh still had not submitted additional documentation and 

rested his case on the record. 

The IJ denied Singh’s application as to each claim, held his asylum application to be 

deliberately frivolous, and ordered his removal. In his order, the IJ found that Singh was not 

credible “about anything” and that his claims were made up “out of nothing.” Order, A.R. 

71. With regard to asylum, the IJ concluded that Singh’s total lack of credibility meant that he 

could not satisfy the definition of a refugee, particularly because he could not show past 

persecution.1 Acknowledging the seriousness of a frivolous-application finding, the IJ 

specifically found that based on numerous inconsistencies, Singh lied about his membership in 

 1

 Asylum may be granted to refugee aliens. 8 U.S.C. § 1158(b)(1)(A). A refugee is one “who is unable or 

unwilling to return to, and is unable or unwilling to avail himself . . . of the protection of, [his native] country 

because of persecution or a well-founded fear of persecution on account of . . . membership in a particular social 

group, or political opinion.” Id. at § 1101(a)(42)(A). An applicant bears the burden of establishing his eligibility for 

asylum, either through his own credible testimony or with corroborating evidence. Id. at § 1158(b)(1)(B)(i)–(ii). 
Nos. 15-4332/16-3585, Singh v. Yates 

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Akali Dal and about the violent incidents with Congress Party members, and that both lies were 

material to his claim for asylum. 

With regard to Singh’s claim for withholding of removal, the IJ noted that Singh could 

not meet the lower burden of proof for asylum and thus could not meet his burden for 

withholding of removal.2 See Mohammed v. Keisler, 507 F.3d 369, 372 (6th Cir. 2007). Finally, 

with regard to Singh’s CAT claim, the IJ noted that Singh had failed to prove his membership in 

Akali Dal and prior harm–much less that such harm was instigated by or consented to by Indian 

government officials–and thus failed to meet his burden on that claim as well.3 Further, the IJ 

found that if removed to India, Singh could avoid danger by relocating within the country. 

 On appeal, the BIA affirmed the IJ’s adverse-credibility determination, finding that it was 

not “clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3)(i). The BIA noted that the IJ’s 

determination was “based on specific, cogent reasons, including discrepancies and omissions 

between the respondent’s testimony, his application, and the documentary evidence” and cited 

the inconsistencies mentioned in the IJ’s order, including the filing of a doctor’s note when Singh 

claimed not to have received medical attention and his inconsistency on what countries he 

traveled through on his way to the United States. A.R. 4. Singh did not, the BIA found, present 

convincing arguments on appeal sufficient to disturb the IJ’s finding. In response to Singh’s 

claim that the inconsistencies were relatively minor and did not go to the heart of his asylum 

 2

 An alien may not be removed to his native country if his “life or freedom would be threatened in 

that country because of [his] . . . membership in a particular social group, or political opinion.” 8 U.S.C. 

§ 1231(b)(3)(A). An alien has the burden of demonstrating a “clear probability” of persecution if he is removed to 

his native country. Mohammed, 507 F.3d at 372. This more-likely-than-not burden exceeds the “well-founded fear” 

burden applicable to asylum claims. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (holding that 

demonstrating asylum eligibility does not require a showing that persecution is more likely than not). 

3

 An alien may not be removed to his native country if he establishes that it is more likely than not that he 

will be tortured there. 8 C.F.R. § 1208.16(c)(2). “Torture” is defined by the CAT’s implementing regulations. See 

8 C.F.R. 1208.18(a). Although aliens need not demonstrate any of the five statutory grounds for asylum or 

withholding-of-removal eligibility for a CAT claim, the proof required to demonstrate that torture is more likely 

than not is more stringent than the proof required to demonstrate that persecution is more likely than not. See Berri 

v. Gonzales, 468 F.3d 390, 397–98 (6th Cir. 2006).
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claim, the BIA noted that an adverse-credibility finding can permissibly rest on inconsistencies 

that do not go to the heart of the claim. See El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 

2009). 

 In affirming the IJ’s denial of Singh’s asylum application, the BIA noted that Singh could 

not satisfy the more stringent clear-probability-of-persecution standard required for withholding 

of removal and thus affirmed that denial as well. See 8 C.F.R. § 1208.16(b); see also

Mohammed, 507 F.3d at 372. The BIA also upheld the IJ’s denial of Singh’s CAT claim because 

he did not “establish that he faces a clear probability of torture in India by, at the instigation of or 

with the consent or acquiescence or willful blindness of the government.” A.R. 5. See Amir v. 

Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). Further, because Singh’s appeal on the CAT claim 

failed to challenge the IJ’s finding that he could avoid danger by relocating, the BIA concluded 

that he had waived a challenge to this finding. Finally, the BIA concluded that although it was a 

close case, a preponderance of the evidence did not support the court’s finding that Singh had 

knowingly and deliberately fabricated material aspects of his asylum application. See 8 C.F.R. 

§ 1208.20. It accordingly sustained Singh’s appeal of the frivolousness finding. Singh filed a 

petition for review from these denials. 

B 

 After the BIA affirmed the IJ’s removal order, Singh married a United States citizen, 

Cynthia Singh (Cynthia), who filed a family-based immigrant visa petition on Singh’s behalf 

with the United States Citizenship and Immigration Services (USICS). The petition was 

approved during the pendency of this appeal. 

 After his marriage to Cynthia and her filing a visa petition on his behalf, Singh moved the 

BIA to reopen his removal proceeding and administratively close it, which would remove the 
Nos. 15-4332/16-3585, Singh v. Yates 

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regulatory bar to his seeking an unlawful-presence waiver.4 Upon an approval of the familybased immigrant-visa petition and a grant of the motion to reopen, Singh would become eligible 

to seek a provisional unlawful-presence waiver. The waiver would allow him to return to India 

for consular processing of his family-based immigrant visa.5 The DHS opposed Singh’s motion 

to reopen, emphasizing that Singh had not established that his marriage was bona fide, and 

asserting that he was otherwise “undeserving” of reopening because of his lack of credibility in 

his removal proceedings. A.R. 286–87. In its denial of Singh’s motion, the BIA noted that 

because Singh’s visa petition was pending at the time, rather than granted, there was no basis for 

relief from removal and further that he failed to show a strong likelihood that his marriage to 

Cynthia was bona fide. Finally, it noted that its power to reopen was not a procedural cure-all 

and that Singh should raise a request for prosecutorial discretion directly with the DHS. Singh 

filed a separate petition for review from this denial. 

II 

Singh claims two categories of errors in this consolidated appeal. First, he argues that the 

IJ erred in finding him incredible and that he in fact established that he was eligible for asylum, 

withholding of removal, and protection under the CAT. Second, he argues that the BIA 

inadequately explained its reasoning in denying his motion to reopen his case for administrative 

closure, or, in the alternative, that the BIA abused its discretion in denying his motion. 

 4

 Under prior DHS regulations, aliens subject to a final order were ineligible for provisional unlawfulpresence waivers, as were aliens in removal proceedings, “unless the removal proceedings [were] administratively 

closed and ha[d] not been recalendared at the time of filing the [application for provisional unlawful-presence 

waiver].” 8 C.F.R. § 212.7(e)(4)(v) (2013). 

5

 Even with an approved immigrant-visa petition, Singh is ineligible to adjust his status while in the United 

States because he entered the country without inspection or admission. See 8 U.S.C. § 1255(a). 
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A 

 This court reviews legal conclusions de novo, but with “deference to the BIA’s 

reasonable interpretation of the statutes and regulations.” Karimijanaki v. Holder, 579 F.3d 710, 

714 (6th Cir. 2009) (quoting Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009)). When the BIA 

issues a reasoned decision rather than summarily affirming the IJ’s decision, we review 

both. Id. The court reviews factual findings, including credibility determinations, for substantial 

evidence. Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir. 2014). This is a deferential standard 

and the BIA’s decision will be upheld so long as it is “supported by reasonable, substantial, and 

probative evidence on the record considered as a whole.” Marku v. Ashcroft, 380 F.3d 982, 986 

(6th Cir. 2004) (quotation omitted). Administrative factual findings are “conclusive unless 

any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B) (emphasis added). 

An applicant bears the burden of demonstrating his eligibility for asylum. 8 U.S.C. 

§ 1158(b)(1)(B)(i). Where his testimony is not “believable, consistent, and sufficiently detailed 

to provide a plausible and coherent account,” he must corroborate “virtually every significant 

instance of persecution” claimed. Gaye v. Lynch, 788 F.3d 519, 528 (6th Cir. 2015) (quotations 

omitted). Failure to provide reasonably expected corroboration is itself grounds for denial of an 

application for asylum. See id. 

 Immigration courts may make adverse-credibility determinations on the basis of 

“any inaccuracies or falsehoods in [the applicant’s] statements, without regard to whether any 

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other 

relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). Credibility determinations are made on the 

totality of the circumstances. Khozhaynova v. Holder, 641 F.3d 187, 193 (6th Cir. 2011). 
Nos. 15-4332/16-3585, Singh v. Yates 

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An adverse-credibility finding that is fatal to an alien’s asylum claim is also fatal to the alien’s 

withholding-of-removal and CAT claims. See Slyusarr, 740 F.3d at 1074. 

 Here, the IJ found that Singh lacked credibility “about anything,” Order, A.R. 71, after 

noting over a dozen inconsistencies presented by Singh, which he never explained (with 

corroboration or otherwise). The BIA cited several of the major inconsistencies noted by the 

IJ—including inconsistencies over Kartar’s role in the attacks, the timing of the attacks, whether 

Singh received medical treatment after the attacks, and how he traveled to the United States. 

Further, against Singh’s argument that these inconsistencies were minor, the BIA correctly noted 

that even inconsistencies that do not reach the heart of the claim may support an adversecredibility finding.6

 El-Moussa, 569 F.3d at 256. In reviewing the documentation that Singh did 

provide, the BIA found it insufficient to rehabilitate his incredible testimony. Indeed, some of 

the documents—such as the doctor’s note and the affidavit of the local official—raised more 

questions than they answered. 

 Because the IJ’s and BIA’s decisions that Singh lacked the credibility to establish his 

eligibility for asylum (including that he was ever persecuted or even a member of the political 

party he claimed to be a part of) is adequately supported, it follows that he could not satisfy the 

more stringent burdens of proof required for his withholding-of-removal and CAT claims. 

Mohammed, 507 F.3d at 372. 

B 

 This court has jurisdiction to review the denial of a motion to reopen. 8 U.S.C. 

§ 1252(a). Because “[t]he decision to grant or deny a motion to reopen . . . is within the 

 6

 The most striking inconsistencies, however, do go to the heart of the claim. In his first application, Singh 

reported no attacks at all, just that he was threatened and fled. In his amended application, however, these incidents 

resulted in his being beaten by Congress Party members, the first time to the point of unconsciousness. These 

attacks are central events in Singh’s claim, and it seems highly implausible that running away versus being brutally 

beaten were minor details that he misremembered or that were lost in translation in his consultations with counsel. 
Nos. 15-4332/16-3585, Singh v. Yates 

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discretion of the [BIA],” 8 C.F.R. § 1003.2(a), we review the BIA’s denial for abuse of 

discretion. Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In 

determining whether the BIA abused its discretion, we must decide “whether the denial of the 

motion to reopen was made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis such as invidious discrimination against 

a particular race or group.” Id. (internal alteration and quotation omitted). 

Article III’s case-or-controversy requirement restricts the court to considering only a 

“live controversy” and forecloses its consideration of moot claims. Harmon v. Holder, 758 F.3d 

728, 732 (6th Cir. 2014). Because this court must analyze regulations as they now exist, a 

change in regulation may moot a claim. Cf. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 

644 (6th Cir. 1997) (discussing mootness due to intervening statutory amendment). Mootness is 

shown when even a favorable judicial decision will not redress the injury claimed. See Lewis v. 

Cont’l Bank Corp., 494 U.S. 472, 477 (1990). 

 Singh has been approved for an immigrant visa, but because he is unlawfully present, he 

is unable to adjust his status while in the United States. Instead, he is required to adjust his status 

through consular processing in India and requires a provisional waiver of unlawful presence to 

do so. 8 U.S.C. § 1255(a). He sought reopening and administrative closure of his removal case 

in order to qualify for the waiver.7

 

 Under a prior DHS regulation, Singh was ineligible for a waiver because he was subject 

to a final order of removal; unless the proceedings were reopened (making them no longer 

“final”) and then “administratively closed and . . . not . . . recalendared at the time of filing the 

[application for provisional unlawful-presence waiver]” (making them no longer “pending”), 

Singh was ineligible to apply for a waiver. 8 C.F.R. § 212.7(e)(4)(v) (2013). The Government 

 7 See notes 4 and 5 and accompanying text. 
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argues that Singh’s pursuit of this relief on appeal is moot due to intervening regulatory changes 

regarding eligibility for a provisional unlawful-presence waiver. The amended regulation 

provides Singh with a new avenue to become eligible for a waiver that does not require that the 

final order be set aside. He may now apply to USICS for consent to reapply for admission and 

then seek a waiver.8

 Singh acknowledges this, but asserts that the amendment merely opens up 

an alternative avenue for him to obtain the ultimate relief he seeks—to become eligible for a 

waiver—and thus the change does not moot his claim. The new regulation does not on its face 

rule out the old practice, but it does change the landscape for petitioners in Singh’s position, who 

no longer must obtain relief from the final order.9

In any event, the BIA did not abuse its discretion in denying Singh’s motion, especially 

given the circumstance that the family-visa petition was not yet granted. Further, as the 

Government points out, the amended regulation has obviated the need to seek reopening by 

allowing for an application for consent to reapply for admission, even when there is a final 

removal order. Thus, even were we to remand the motion to reopen for reconsideration, the BIA 

would have additional cause to deny it. 

III 

For the foregoing reasons, Singh’s petitions are DENIED. 

 8

 An alien who is “subject to an administratively final order of removal” is no long ineligible for a 

provisional unlawful-presence waiver if he “has already filed and USICS has already granted, before [he] applies for 

a . . . waiver . . . , an application for consent to reapply for admission . . . .” 8 C.F.R. § 212.7(e)(4)(iv) (2016). 

 

9 See 8 C.F.R. § 212.7(e)(4)(iii) (2016). This provision provides that “an alien is ineligible for a provisional 

unlawful presence waiver . . . if . . . [t]he alien is in removal proceedings, in which no final order has been entered, 

unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the 

application for a provisional unlawful presence waiver . . . .” (emphasis added).