18-3814

Singh v. Barr

BIA

Schoppert, IJ

A 200 905 510

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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 2nd 4 day of November, two thousand twenty.

5

6 PRESENT:

7 DENNIS JACOBS,

8 DENNY CHIN,

9 JOSEPH F. BIANCO,

10 Circuit Judges.

11 _____________________________________

12

13 KULVIR SINGH,

14 Petitioner,

15

16 v. 18-3814

17 NAC

18 WILLIAM P. BARR, UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Mona Liza F. Lao, Esq., New York, 

24 NY.

25

26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

27 Assistant Attorney General; Erica 

28 B. Miles, Senior Litigation 
2

1 Counsel; Imran R. Zaidi, Trial 

2 Attorney, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

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 petition for review 

9 is DENIED.

10 Petitioner Kulvir Singh, a native and citizen of India, 

11 seeks review of a November 30, 2018 decision of the BIA 

12 affirming an October 3, 2017 decision of an Immigration Judge 

13 (“IJ”) denying Singh’s application for asylum, withholding of 

14 removal, and relief under the Convention Against Torture 

15 (“CAT”). In re Kulvir Singh, No. A 200 905 510 (B.I.A. Nov. 

16 30, 2018), aff’g No. A 200 905 510 (Immig. Ct. N.Y. City

17 Oct. 3, 2017). We assume the parties’ familiarity with the 

18 underlying facts and procedural history.

19 Rather than file a brief, the Government has moved for 

20 summary denial. We deny the motion because summary denial 

21 is reserved for frivolous cases. See United States v. Davis, 

22 598 F.3d 10, 13-14 (2d Cir. 2010). However, we construe that 

23 motion as the Government’s brief and deny the petition on the 

24 merits because, as discussed below, the adverse credibility 
3

1 determination is supported by substantial evidence. 

2 We have reviewed both the IJ’s and the BIA’s decisions 

3 “for the sake of completeness.” Wangchuck v. Dep’t of 

4 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 

5 applicable standards of review are well established. See 8 

6 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 

7 67, 76 (2d Cir. 2018) (reviewing adverse credibility 

8 determination for substantial evidence). 

9 “Considering the totality of the circumstances, and all 

10 relevant factors, a trier of fact may base a credibility 

11 determination on . . . the consistency between the applicant’s 

12 . . . written and oral statements . . . , the internal 

13 consistency of each such statement, [and] the consistency of 

14 such statements with other evidence of record . . . , without 

15 regard to whether an inconsistency, inaccuracy, or falsehood 

16 goes to the heart of the applicant’s claim, or any other 

17 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer

18 . . . to an IJ’s credibility determination unless, from the 

19 totality of the circumstances, it is plain that no reasonable 

20 fact-finder could make such an adverse credibility ruling.” 

21 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 
4

1 accord Hong Fei Gao, 891 F.3d at 76. 

2 The agency properly considered that Singh omitted from 

3 his asylum application that he lived in Jordan for two years. 

4 In his application, Singh reported that he lived in India 

5 continuously from 1983 (when he was born) to 2013 (when he 

6 left for the United States), despite a question instructing 

7 him to provide all addresses for the past five years. In his 

8 accompanying written statement and in a supplemental 

9 statement submitted prior to his hearing, he did not mention 

10 living in Jordan. On cross-examination, however, he stated 

11 that he fled to Jordan from India for two years starting in 

12 2009 because of unspecified “threats” (presumably from the 

13 Congress Party). See Certified Administrative Record (“CAR”) 

14 at 146-47. When asked why he failed to mention his time in 

15 Jordan in his asylum application, he said that question was 

16 not asked, see CAR at 147, but this explanation did not 

17 resolve the discrepancy because the application requires a 

18 list of prior residences, see Majidi v. Gonzales, 430 F.3d 

19 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 

20 a plausible explanation for his inconsistent statements to 

21 secure relief; he must demonstrate that a reasonable fact-
5

1 finder would be compelled to credit his testimony.” (internal 

2 quotation marks omitted)). 

3 While the agency may err if it relies too heavily on 

4 minor omissions (at least where the omitted information would 

5 have supplemented, rather than contradicted, earlier 

6 statements), the agency did not err here because the omission 

7 related to Singh’s central claim that he was afraid of the 

8 Congress Party. See Ming Zhang v. Holder, 585 F.3d 715, 726 

9 (2d Cir. 2009) (holding that the agency may “draw an adverse 

10 inference about petitioner’s credibility based, inter alia,

11 on h[is] failure to mention” important details or events in 

12 prior statements). And it was reasonable to expect Singh to 

13 include the fact that he fled the country because of threats, 

14 as that fact goes both to his subjective fear and the severity 

15 of the threats. See Hong Fei Gao, 891 F.3d at 78 (holding 

16 that “the probative value of a witness’s prior silence on 

17 particular facts depends on whether those facts are ones the 

18 witness would reasonably have been expected to disclose”).

19 Relatedly, Singh’s testimony was inconsistent with his 

20 credible fear interview as to why he moved to Jordan. Singh 

21 never mentioned living in Jordan when providing direct 
6

1 testimony, and on cross-examination, he told the Department 

2 of Homeland Security that he went to Jordan to escape 

3 unspecified “threats.” See CAR at 146–47. But at a credible 

4 fear interview a few weeks after he entered the United States, 

5 he stated that he went to Jordan to work. Singh had no 

6 compelling explanation for this inconsistency and simply 

7 repeated both facts, that he received threats and went to 

8 Jordan to work. See Majidi, 430 F.3d at 80. He never 

9 specified who threatened him, how often he was threatened, 

10 and what the threats were.

11 Having questioned Singh’s credibility, the agency 

12 reasonably relied on his failure to rehabilitate his 

13 testimony with reliable corroborating evidence. See Biao 

14 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

15 applicant’s failure to corroborate his or her testimony may 

16 bear on credibility, because the absence of corroboration in 

17 general makes an applicant unable to rehabilitate testimony 

18 that has already been called into question.”). The agency 

19 did not err in declining to afford significant weight to 

20 letters from Singh’s family members, fellow Mann Party 

21 members, neighbor, and doctor because the family members were 
7

1 interested parties and none of the authors was available for 

2 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 

3 334 (2d Cir. 2013) (holding that weight of evidence is within 

4 the agency’s discretion and deferring to agency’s decision to 

5 afford little weight to spouse’s letter); see also In re H6 L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding 

7 that unsworn letters from alien’s friends and family were 

8 insufficient support for alien’s claims because they were 

9 from interested witnesses not subject to cross-examination), 

10 overruled on other grounds by Hui Lin Huang v. Holder, 677 

11 F.3d 130 (2d Cir. 2012).

12 Accordingly, given Singh’s omission of the two years he

13 spent in Jordan from his asylum application and the 

14 inconsistency between statements at his credible fear 

15 interview (that he went to Jordan to work) and his testimony 

16 (that he went there to escape threats), as well as the lack 

17 of specific information about the alleged threats or reliable 

18 corroboration of his claims, we defer to the agency’s adverse 

19 credibility determination. See Xiu Xia Lin, 534 F.3d at 167; 

20 see also Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 

21 289, 295 (2d Cir. 2006) (holding that even a single 
8

1 inconsistency is sufficient to support an adverse credibility 

2 determination if it is material and relates to “an example of 

3 the very persecution from which” the applicant seeks relief). 

4 The adverse credibility determination is dispositive of 

5 asylum, withholding of removal, and CAT relief because all

6 three forms of relief were based on the same discredited 

7 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–

8 57 (2d Cir. 2006).

9 For the foregoing reasons, the petition for review is 

10 DENIED. All pending motions and applications are DENIED and 

11 stays VACATED.

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe,

14 Clerk of Court