17

- 2368 Singh v. Garland UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 20 2 0 4 5 ( Submitted : January 20 , 20 21 Decide d: July 28, 2021 6 A m e n d e d : July 2 8 , 2021 ) 7 Docket No

. 17

- 2368 8 9 10

_____________________________________ 11 12 AMARDEEP SINGH , 13 14 P etitioner , 15 16

v. 17 18 M ERRICK B. GARLAND , United States Attorney General , * 19 20 Respondent

. 21

_____________________________________ 22 23 Before: 24 25 KEARSE 

### , LEVAL, and CARNEY , Circuit Judges

. 26 27 Petition er seeks review of an order of the Board of Immigration 28 Appeals affirming the decision of the Immigration Judg e , which, on adverse 29 credibility grounds, deni e d Petitioner asylum, withholding of removal, and 30 relief under the Convention Against Torture. The petition for review is 31 GRANTED, the order of the Board of Immigration Appeals is VACATED, 32 and the case is REMANDED. 33 34

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent.17

- 2368 Singh v. Garland

2 A MY N USSBAUM G ELL , Gell & Gell, New 1 York, NY , for Petitioner

. † 2 3 B RYAN B OYNTON ( Chad A. Readler , on 4 the brief ) , Acting Assistant Attorney 5 General; J OHN S. H OGAN , Assistant 6 Director; R OBBIN K

. B LAYA , Trial 7 Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, Washington, DC , for Respondent

. 10 11 LEVAL , Circuit Judge : 12
Amardeep Singh, a native and citizen of India seeking relief from 13
political persecution in his home country, petitions for review of the decision 14
of the Board of Immigration Appeals (“BIA”) affirm ing the decision of the 15
Immigration Judge (“IJ”) , which, on adverse credibility grounds, denied 16
Singh asylum, withholding of removal, and protection under the Convention 17
Against Torture (“CAT”)

. The IJ relied on four instances of what the IJ 18
perceived as “ inconsistencies ” to support her finding that Singh was not 19

credible . The BIA affirmed, finding no clear error in the IJ’s decision

. See I n re 20
Amardeep Sing h, No. A 208 179 532 (B.I.A. July 10, 2017), aff’g No. A 208 179 21

† After Petitioner’s counsel briefed this appeal, the Court granted her request to withdraw from the Court’s bar in connection with an attorney grievance matter that resulted in the issuance of a reprimand. See In re Gell , 813 F. App ’ x 706, 707 (2d Cir. 2020)

. While counsel did not withdraw from representing Petitioner, we consider him to be pro se

.17

- 2368 Singh v. Garland

3 532 (Immig. Ct. N.Y. City Sept. 29, 2016). We conclude that the IJ and BIA 1

erred in treating three of the four instances of perceived inconsistencies as 2
casting doubt on Singh’s credibility. They did not involve inconsistency, at 3
least not of the sort that can reasonably support doubt about the speaker’s 4
credibility. Although the fourth instance , unlike the first three, did indeed 5
involve inconsistency, the inconsistency related t o a trivial detail

. T his trivial 6
inconsistency by itself, without more, could not reasonably justify finding 7
Singh not credible. The IJ’s ruling was thus not supported by substantial 8

evidence. We therefore grant the petition, vacate the decision of the BIA , and 9
remand for further proceedings. 10

BACKGROUND 11
In 2015, Singh, a native and citizen of India, entered the United States 12
without valid immigration documents and was placed in removal 13
proceedings. He conceded removability and timely applied for asylum, 14

wi thholding of removal, and CAT relief on the basis of political persecution in 15
his home country. 16
Singh asserted that he was an active member of Shiromani Akali Dal 17

Amritsar (“SADA”) , a political party that advocates for the rights of Sikhs in 1817

- 2368 Singh v. Garland

4 India, and that he had twice been attacked by members of rival political 1

part ies and /or police because of t his political affiliation. Singh reported the 2
first attack to the police, but the police did not investigate. S ingh did not 3

report the second attack to the police because “they did not help [him] the 4
first time” and “were also involved in beating [him] up.” Cert. Admin. R. at 5

591

- 92

. 6
In support of his application, Singh testified at a hearing before the IJ 7

and submitted affidavits from friends, neighbors, family, and his local 8

M unicipal C ouncilor

. He also submitted letters from an attorney with whom 9

he had consulted in India and from Simranjit Singh Mann , the president of 10

SADA , as well as articles and reports concerning police violence and human 11
rights abuses perpetrated against Sikhs in India. 12
The IJ ultimately denied all relief on credibility grounds and ordered 13
Singh removed to India. In her September 29, 2016 order, the IJ identified four 14
aspects of Singh’s evidence that she believed to be inconsisten cies supporting 15
her conclusion that Singh lacked credibility. 16

First, t he IJ noted that Singh testi fied at his hearing that he had spoken 17

with SADA President Mann after both attacks , but that these conversations 1817

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5 were not mentioned in Singh’s written asylum statement

. Id. at 168

. S econd , 1
the IJ pointed out that Mann’s letter in support of Singh’s application, which 2
described the persecution suffered by Sikhs in India, similarly made no 3
mention of Singh’s visits to Mann to tell Mann of the beatings Singh had 4

suffered. Id

. When confronted with these facts at the hearing , Singh explained 5

that the omission from his statement was a mistake and that the omission 6

from Mann’s letter may have been due to the fact that Mann “ is a very busy 7
person, who meets many workers in a day ” and so the conversation s may 8
have “slipped his mind

. ” Id. T he IJ rejected Singh’s explanation s because the 9

conversations occurred “ on two separate occasions” and related to “incidents 10

of violence

. ” Id. The IJ considered the omission s significant “because [they] 11

relate [d] to [Singh’s] relationship to his party leader ” and “ what actions 12
[Singh] took to report the incidents of persecution to the leader of his own 13

party

. ” Id. 14

Third , t he IJ found that Singh’s testimony was “ undermined ” by an 15
inconsistency she found in a letter from N.S. Noor, an attorney with whom 16
Singh had consulted in India after the attacks. Id

. at 169. The attorney’s letter 17
stated that “[i ]n accordance with the information on old diary of events for 1817

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6 2014,” Singh and his father had visited the attorney “to discuss any remedy” 1
Singh might have against his attackers. Id . at 528. The attorney wrote , 2
Mr. Amardeep told me that he was first beaten up 3 mercilessly by congress party workers

. . . . Second time, 4 I was beaten up mercilessly by the members of SAD 5 (Badal) as wel l as B.J.P. Party workers. 6
Id. (emphasis added)

. 7 The IJ found that Attorney Noor’s use of “I” in identifying the victim of 8

the second attack meant that the second attack was perpetrated against the 9
attorney and not against Singh, further undermining Singh’s credibility. 10
When questioned at the hearing about the attorney’s use of the pronoun “I” 11

inst ead of “he,” Singh testified that the attorney was referring to Singh being 12

beaten and that the use of the word “I” was “maybe

. . . a typo or something 13
written by mistake.” Id . at 229. The IJ rejected Singh’s explanation that this 14

was a mistake , reasoning that “ the attorney supposedly knew that this letter 15
was going to be submitted directly to a court in the United States ” and thus 16

“ would strive to present a document that was accurate

. . . . ” Id

. at 169. 17
Finally, the IJ found that Singh’s testimony was inconsistent with an 18

affidavit from Des Raj Jassal, a Municipal Councilor in India, in which Jassal 19
asserted that he had accompanied Singh and Singh’s father to the police 2017

- 2368 Singh v. Garland

7 station after the first attack. This was inconsistent with Singh’s hearing 1
testimony that Singh went to the police station accompanied only by his 2

father. When asked about this incons istency, Singh asserted that his 3
testimony was correct and that Jassal had not accompanied Singh and his 4
father, but that Jassal had been provided with all of the information regarding 5
the attack. The IJ rejected this as “n ot an explanation for the inconsi stency ” 6
and concluded that the inconsistency “ was significant because it relates to the 7
aftermath of the alleged persecution and whether and by whom the police 8

were notified. ” Id. at 167

- 68

. 9

The IJ found no other basis for doubting Singh’s credibility. T he BIA 10
affirmed the IJ ’s decision, finding no clear error in the IJ’s determination that 11
Singh was not credible , and conclu d ing that the “concerns” raised by these 12

inconsistencies were not sufficiently counterbalanced by other evidence in the 13

record to rehabilitate Singh’s credibility

. Id . at 3

- 5

. 1417

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8 In this petition for review , Singh challenges the adverse credibility 1
finding, arguing that the agency’s reliance on minor inconsistencies was 2

error. 1 3

DISCUSSION 4

I. Standard of Review 5
Where the BIA and IJ reach the same conclusion on credibility, we 6

review the decisions together, considering the reasoning provided by both the 7
IJ and BIA and ignoring any grounds relied on by the IJ that were “explicitly 8
rejected by the BIA.” Hong Fei Gao v. Sessions , 891 F.3d 67 , 76 (2d Cir. 2018)

. 9

Pursuant to 8 U.S.C. § 1252(b)(4)(B) , “ administrative findings of fact are 10
conclusive unless any reasonable adjudicator would be compelled to 11

1 Singh also a rgues that the IJ ignored evidence and failed to properly consider his risk of future persecution. We find these arguments without merit. Singh asserts that the IJ failed to consider a supplemental affidavit from his Municipal Councilor, but as the BIA noted, th at affidavit was submitted after the IJ had closed the record. Cert. Admin R. 4. The IJ is entitled to set filing deadlines and reject untimely filings. See Dedji v. Mukasey , 525 F.3d 187, 191 (2d Cir. 2008) (“An IJ has discretion to set deadlines for the submission of documents . . . [and] [w]hen a document has been deemed untimely filed, the opportunity to file that document shall be deemed waived.” (internal quotation mark s and ellipses omitted)). As for Singh’s argument that the agency failed to consider his risk of future persecution, the IJ’s decision explicitly stated that the adverse credibility finding also “extend[ed] to any future fear that [Singh] might allege[.]” Cert. Admin R. at 17 0

.17

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9 conclude to the contrary .” This language presents special problems when the 1
finding of fact is an adverse credibility determination. If r ead literally, that 2

standard would virtually never permit courts to set aside an adverse 3
credibility finding because hardly ever is there a circumstance in which a fact 4
finder is compelled to find a witness credible, especially as credibility 5

determination s may be based on “ demeanor ” alone. 8 U.S.C. 6
§ 1158(b)(1)(B)(iii). 7

T h is literal reading of the “unless . . . compelled” standard , however, 8

would be inconsistent with the statutory mandate in 5 U.S.C. § 706 (2) (e) , 9

which requires a reviewing court to “ set aside agency action, findings, and 10

conclusion s found to be . . . unsupported by substantial evidence . . . .” T hese 11

two standards would be at odds because a literal reading of the “unless . . . 12
compelled” standard would insulate an adverse credibility finding from 13
review, even where the reason provided furnishe s no rational support for the 14
finding , while the latter standard requires that findings without substantial 15
evidentiary support be set aside. 16

While our C ourt has fr equently cited the “unless

. . . comp e l l ed” 17

standard in decision s upholding adverse cred ibility fin d ing s, see, e.g ., Xiu Xia 1817

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10 Lin v. Mukasey , 534 F.3d 162, 16 5

- 67 (2d Cir. 2008) (per curiam) ; Shu Wen Sun 1

v. BIA , 510 F.3d 377, 379

– 80 (2d Cir. 2007) (per curiam) ; Majidi v. Gonzales , 430 2

F.3d 77, 79

– 80 (2d Cir. 2005) , in numerous circumstances we have made clear, 3
when rejecting adverse credibility findings, that the “unless

. . . compelled” 4
standard does not apply literally , see, e.g ., Jhok Bahadur Gurung v. Barr, 929 5

F.3d 56, 60

- 61 (2d Cir. 2019) ; Hong Fei , 891 F.3d at 76

- 77 , 79

- 80 ; Kone v. Holder, 6

596 F.3d 141, 146 , 1 50

- 51 (2d Cir. 2010) ; Pavlova v. INS , 441 F.3d 82, 87

- 88 , 91 7
(2d Cir. 2006)

. Our Court has recently and repeatedly explained that the 8
“unless . . . compelled” standard demands the same level of evidentiary 9

support as the substantial evidence standard, “ which requires that [factual 10
findings] be supported by reasonable, substantial and probative evidence in 11

the record when considered as a whole. ” Hong Fei , 891 F.3d at 76 (internal 12
quotation marks omitted) ; see also Gurung , 929 F.3d at 60 (“ Our Court has 13
interpreted th [e] statutory standard [in 8 U.S.C. § 1252(b)(4)(B) ] to mean that 14

the IJ's factual findings

— including her adverse credibility determinations

— 15
merit deference so long as they are supported by substantial evidence. ”). 16
The problem arising fro m application of the statutory “unless . . . 17
compelled” standard to adverse credibility findings was carefully and 1817

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11 extensively discussed in our recent opinion in Hong Fei , 891 F.3d at 76

- 7 9

. 1
Judge Chin there explained that, while “ we afford particular deference to the 2
IJ's adverse credibility determination, the fact that an IJ has relied primarily 3
on credibility grounds in dismissing an asylum application cannot insulate 4

the decision from review. ” Id

. at 76 (internal quotation marks omitted). 5

Rather , a reviewing court “ must assess whether the agency has provided 6
specific, cogent reasons for the adverse credibility finding and whether those 7
reasons bear a legitimate nexus to the finding. ” Id . at 77 (internal quotation 8
marks omitted). Thus, the “unless . . . compelled” standard requires that the IJ 9
articulate “specific” and “cogent” reasons for finding an applicant not 10

credible , that the reasons provided by the IJ “ be supported by reasonable, 11
substantial and probative evidence in the r ecord when considered as a 12

whole , ” and that they “bear a legitimate nexus to the [adverse credibility] 13
finding.” Id

. at 76

- 77 (internal quotation marks omitted)

. This standard, while 14
appropriately deferential, nonetheless requires that an IJ’s reasons for finding 15
an applicant not credible be both (1) supported by substantial evidence in the 16
record and (2) logically related to the applicant’s credibility. W here the 17

agency found an applicant not credible on the basis of grounds that do not 1817

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12 provide substantial reasonable support for the finding, that finding would be 1
subject to judicial review and would be set aside. This interpretation of the 2
“unless . . . compelled” standard reconciles it with the mandate of 5 U.S.C

. § 3

706 (2) (e)

. 4
We fully recogni ze that credibility determinations may be based on any 5
inconsistencies, inaccuracies, or falsehoods, “without regard to whether [the] 6
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s 7
claim, or any other relevant factor.” 8 U.S.C . § 1158(b)(1)(B)(iii). But i t does 8
not follow that an adverse credibility finding may be based on a n 9

inconsistenc y so trivial and inconsequential that it has little or no tendency to 10
support a reasonable inference that the petitioner has been untruthful. Such 11

an inconsistenc y bears no legitimate nexus to credibility and thus cannot , on 12

its own, constitute the substantial evidence needed to support an adverse 13
credibility finding

. See Hong Fei , 891 F.3d at 77 (“A trivial inconsistency or 14

omissio n that has no tendency to suggest a petitioner fabricated his or her 15
claim will not support an adverse credibility determination.”). ‡ 16

‡ There are, of course, circumstances in which multiple seemingly minor inconsistencies are sufficient, when viewed cumulatively, to support a reasonable inference of untruthfulness, even if one of them in isolation would have been i nsufficient.17

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13 Where an IJ relies solely on erroneous bases in reaching an adverse 1
credibility determination, or where the remaining non

- disqualified bases are 2
legally insufficient to satisfy the substantial evidence requirement , that 3
finding cannot stand

. See 5 U.S.C. § 706 (2) (e). Where, however, an IJ relies on 4

mul tiple bases , some of which are erroneous and the remainder of which are , 5
when viewed together, legally sufficient to satisfy the substantial evidence 6
requirement, several different dispositions are possible, depending on how 7
powerfully the permissible base s support the adverse credibility finding. 8

Where the remaining grounds supporting the adverse credibility finding are 9
sufficiently probative of untruthfulness , the reviewing court might simply 10
affirm the ruling based on confidence that the agency would adhere to the 11
adverse credibility finding notwithstanding disqualification of some of its 12

asserted bases. In contrast, w here the major support for the adverse 13

cr edibility conclusion is found to be legally erroneous, and therefor e 14
disqualified, and the reviewing court cannot confidently predict whether the 15
agency would adhere to the determination absent the errors, the reviewing 16

court would remand for the agency to reconsider the questio n

. Hong Fei , 891 17

F.3d a t 82. Finally, where it is clear that the agency would not adhere to the 1817

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14 adverse credibility finding absent the errors identified on review , that finding 1

w ould be set aside. 2

II. Application 3
With the foregoing principles in mind, we review the agency’s reasons 4
for the adverse credibility finding

. T hree of the four aspects of Singh’s 5
evidence found by the IJ to suffer from inconsistency were not reasonably 6

considered inconsisten cies and furnish ed no evidentiary support for the 7

conclusion that Singh was untruthful. The fourth presented a n inconsistency 8
so trivial and so lacking in logical support for a finding of fabrication, that it 9

could not, on its own, constitute substantial evidence to suppo rt a finding that 10
Singh was not credible. 11

A. Singh’s Omission of Post

- Attack Conversations with Mann 12 The IJ’s r eliance on the omission from Singh’s asylum statement of his 13

post

- attack conversations with Mann was error because the omission did not 14
contradict or undermine Singh’s account and had no bearing on his 15
credibility. There was no reason for Singh to mention the conversations in his 16
asylum statement because they were not part of what Singh was undertakin g 17

to communicate. 1817

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15 While we have stated in dicta that, under some circumstances, 1
omissions and inconsistencies are “functionally equivalent,” Xiu Xia , 534 F.3d 2
at 166 n.3, we have also explained that “omissions are less probative of 3
credibility than inconsistencies created b y direct contradictions in evidence 4
and testimony,” Hong Fei , 891 F.3d at 78 (internal quotation marks omitted)

. 5

Omissions are undoubtedly probative of untruthfulness in circumstances 6

where the omission renders what is stated untrue or deceitful , bu t not 7
necessarily so whe re the omission constitutes nothing more than non

8

inclusion of an i nessential fact. See id . at 79. 9
As between two tellings of a story, the fact that the later telling includes 10
details not included in the first does not necessarily render the two tellings 11

inconsistent or cast doubt on the speaker’s credibility . Whether the two such 12
statements are inconsistent depends in part o n the importance that the 13
omitted fact would have had for the purpose of the earlier telling. It may also 14
depend on the extent to which the first statement, which excluded a detail 15
contained in the second statement, purported to be a complete and exhaustiv e 16
account containing all relevant details. In many circumstance s , a fact later 17
asserted by a petitioner but omitted from his earlier statement can be of such 1817

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16 importance to the purpose of the earlier statement that its omission makes the 1
two tellings inconsistent and legitimately casts doubt on the veracity of the 2

later addition. Thus, in a hypothetical case, a petitioner who later claims to 3
have been brutally b eaten but omitted any reference to a beating from his 4

earlier description of his persecution (there mentioning only less brutal 5
conduct such as a slap in the face ) , can be properly found to have made 6

inconsistent statements and to have fabricated the later assertion because the 7
fact of the beating would have been so important to his earlier claim that he 8
would have been expected to have included it in the earlier statement

. On the 9
other hand, the less importance the omitted fact would have had to the 10
object ive of the statement from which it was omitted, the less the two 11

statements can be seen as inconsistent or as supplying a basis for doubting 12
veracity. We have therefore ruled that a petitioner’s divulgence of previously 13
omitted details regarding the aftermath of his persecution, which are 14
“supplementary, not contradictory” to the petitioner’s account, should not 15
necessarily be “characterized . . . as inconsistencies

. ” Id

. at 79. 16

The fact that Singh told Mann about the beatings bore little or no 17
importance to Singh’s asylum statement

. The purpose of Singh’s asylum 1817

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17 statement was to set forth the basis for his claim of eligibility for asylum

— that 1

he suffered “persecution due to [his] af filiation with the Sikh political party 2
[SADA]” and that the police both participated in the abuse and failed to help 3

him. Cert. Admin. R. 479

. In furtherance of that objective, he described two 4
savage beatings he suffered at the hands of police and members of rival 5
political parties, including being abducted by six men and beaten “with 6
baseball bats until [he] passed out.” Id

. at 480

. Singh’s lat er telling Mann 7
about the attacks was not a part of his persecution or his eligibility for 8
asylum , and Singh was not expected, let alone required, to recount th ese post

9
persecution conversations in his asylum statement

. See Hong Fei , 891 F.3d at 10
80 (“[A] sylum applicants are not required to list every incident

. . . that occurs 11

in the aftermath of the alleged persecution [in their asylum statements ] .” 12
(internal quotation marks omitted) (emphasis in original) )

. 13
There was little reason for Singh to include the conversations with 14
Mann in his asylum statement, and his failure to do so does not furnish any 15
logical support for the inference that his later mention of having told Mann 16

about the attacks (or any aspect of his statement) was a fabrication. Singh 17

like ly told many people about the beatings he endured without then 1817

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18 mentioning each of those conversations in his asylum statement, but his not 1
mentioning all of those conversations in his asylum statement does not 2
logically suggest that he fabricated the narra tions. § Moreover, that Singh 3
notified his party leader of the attacks reinforces, rather than undermines, his 4
claim of political persecution. See id. at 79. 5
Singh’s testimony regarding the post

- attack conversations with Mann 6
provided “supplementary, not contradi ctory,” details regarding the 7
“aftermath of the alleged persecution,” and the IJ erred to the extent she 8
characterized this omission as an inconsistency supporting a finding that 9
Singh lacked credibility

. See i d

. at 79

- 80 (“ [T] he IJs erred to the extent th at they 10

characterized . . . omissions [ regarding medical treatment sought in the 11
aftermath of persecution ] as inconsistencies.”); c f. Xiu Xia , 534 F.3d at 166 n.3. 12

§ For example, in support of his application , Singh submitted affidavits of six members of his community , commenting on the beatings Singh endured because of his political affiliation , Cert. Admin. R. 511

- 27 , and these six people most likely learned of the beatings from Singh. Singh did not include in his asylum statement that he had told those six people of the beatings. The implicit acknowledgment by those six people that they learned from Sing h of his beatings without his having acknowledged telling them in his statement does not in any way support an inference of subsequent fabrication. The same is true of Singh’s not having included in his statement the fact of his having told Mann. That fact does not in any way support an adve rse credibility inference. The post

- attack conversations were of little or no importance to the purpose of the asylum statement

.17

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19 B. Mann’s Omission of Post

- Attack Conversations with Singh 1 The IJ further erred in discrediting Singh based on Mann’s not stating 2

in his letter that Singh had come to see him to tell of the beating s Singh had 3

suffered

. The purpose of Mann’s letter was to report on the brutal treatment 4

that Sikhs and members of SAD A receive in India, supporting the likelihood 5
that Singh, as a Sikh and SADA member, would face persecution on returning 6

to India. Mann had not witnessed the beatings Singh experienced . He was not 7
in a position to attest to the veracity of Singh’s account of his beatings, and 8

did not undertake to do so. H is letter did not mention those facts . The fact 9

that Singh had come to see Mann to tell Mann about his personal experiences 10
had little importance for the general message of Mann’s letter about the 11
widespread persecution of Sikhs. Mann’s omission of his conversation with 12
Singh in no way undermined the credibility of Mann’s message or of Singh’s 13
account of his persecution

. 14
Nor was the adverse credibility finding in any wa y supported by what 15
the IJ found to be the inadequacy of Singh’s explanation , when asked, why 16

Mann had failed to mention the post

- attack conversations in his letter. See 17
Hong Fei , 891 F.3d at 81 ( “ [W] here a third party’s omission creates no 18
inconsistency with an applicant’s own statements

— an applicant’s failure to 1917

- 2368 Singh v. Garland

20 explain third

- party omissions is less probative of credibility

. . . .” )

. Singh was 1
not in a position to know why Mann did not mention their conversation. He 2
could only guess. The fact that the IJ was unimpressed by his guess in no way 3

undermined Singh’s credibility. 4

C. Attorney’s U se of “I” in Referring to the Victim of the Second 5 Attack 6 The IJ also erred in finding that Singh’s credibility was undermined by 7

a letter from an attorney in India with whom Singh had consulted after the 8

attacks. Att o rney Noor’s letter , as described abov e, said, “ Mr. Amardeep told 9

me that he was first beaten up mercilessly by congress party workers

. . . . 10

Second time, I was beaten up mercilessly by the members of SAD (Badal) as 11

wel l as B.J.P. Party workers. ” Cert. Admin. R. 528

. The attorney’s use of “I , ” 12

instead of “he,” in referring to the victim of the second attack, was 13
undoubtedly a simple mistake. 14
The IJ construed the letter ’s use of “I” with respect to the second attack 15
as meaning that the attack was perpetrated against the lawyer and not against 16
Singh, and that Singh was falsely claiming to have been the victim of an 17
attack that was in fact made on the lawyer. That is not plausible in the 18

circumstances. It is clear that the lawyer’s letter was describing Singh’s 1917

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21 narrati on of what had happened to Singh and not telling the law y er’s own 1
personal misfortunes. 2

The fact that A ttorney Noor’s use of “I” was a mistake and not a 3
statement of brutalities endured by the lawyer is shown by analysis of the 4

structure of Noor’s letter. The paragraph in question first states that Singh 5
and his father visited the attorney “to discuss any remedy against the 6
congress party workers and Shi r omani Akali Dal (Badal)+B.J.P. party workers 7

and Police accusation.” Id

. This passage refers to Singh’s identification of the 8

three abusers against whom Singh sought a “ remedy ” : 1) C ongress P arty 9

workers; 2) Shi r omani Akali Dal ( Badal ) and B.J.P. P arty workers; and 3) the 10

p olice. The next three sentences describe the substance of Singh’s complaint 11
against each of the three subjects named as possible sources of a remedy. 12

First, as to C ongress P arty workers, it states: “[Singh ] told me that he was first 13
beaten up mercilessly by congr ess party workers.” Id

. Next , as to police, the 14
following sentence continues: “ [Singh] and his father went to the Police 15

S tation to lodge [ a ] complaint/F I R against the culprits but the P olice did not 16
register the case against the said culprits and rather m isbehaved with them. ” 17

Id. Finally, in the third sentence , which relates to Singh’s allegation of abuse 1817

- 2368 Singh v. Garland

22 by the Shiromani Akali Dal ( Badal ) and B.J.P. P arty workers, the letter states, 1
“Second time, I was beaten up mercilessly by the members of SAD (Badal) as 2
well as B.J.P. Party workers.” Id

. The context makes clear that this last 3

sentence undertook to summarize Singh’s complaint against the Shiromani 4

Ak ali Dal ( Badal ) and B.J.P. P arty workers, and was not a depart ur e by the 5
lawyer from writing about client Singh’s complaints to venting the grievances 6

the lawyer had, by coincidence, against the very same entities against whom 7
Singh was seeking a remedy. 8

In the context of the overall letter, t he IJ’s interpretation of it as 9
describing one attack against Singh and a second attack against A ttorney 10

Noor was not with in the realm of reason ; this perceived inconsistency gave 11

no substantial support , indeed no support at all, to the IJ’s adverse credibility 12
finding. 13

T he IJ’s rejection of Singh’s proffered explanation that the lawyer made 14
a mistake on the ground that the lawyer, knowing that his letter would be 15
presented to a court in the United States , would have taken all necessary 16
pains to avoid making a mistake is equally devoid of reason. It is not unusual 17

for lawyers to prepare documents to be presented to a court , and they 1817

- 2368 Singh v. Garland

23 occasionally make mistakes

. I n the context , it was not within the scope of a 1

fact

- finder’s discretion to treat this use of “I” as intending to describe a 2
beating endured by the lawyer rather than the client about whom the lawyer 3
was writing. 4

W h ile it is true that petitioner s “ must do more than offer a ‘ plausible ’ 5
explanation for

. . . inconsistent statements to secure relief ,” Zhou Yun Zhang 6

v. United States INS , 386 F.3d 66, 76 (2d Cir. 2004) , they need not explain away 7

inconsistencies that do not exist, see Gurung , 929 F.3d at 61

. In this instance, 8
while there was a superficial appearance of inconsistency resulting from what 9
was obviously a mistake , it was overwhelmi ngly clear that the appearance of 10
inconsistency between Singh’s testimony and the attorney’s letter was not a 11
genuine inconsistency and furnished no reasonable basis for doubting Singh’s 12
credibility. 13

D. Inconsistency Regarding Who Accompanied Singh to the Police 14 Station 15 Finally, the IJ relied on the inconsistency between Singh’s testimony 16

that , after the first attack, he visited the police station accompanied only by 17

his father and the statement in Jassa l ’s affidavit that Jassal accompanied Singh 18
and his father to the police station. When Singh was confronted with the 1917

- 2368 Singh v. Garland

24 inconsistency on cross

- examination, he asserted that his testimony was 1
correct and that Jassa l ’s statement was inaccurate. Cert. Admin R. 224

. 2

Unlike the other thre e instances found by the IJ, t his is indeed an 3
inconsistency. We recognize , furthermore, that a single inconsistency in a 4
petitioner’s evidence, even one that does not go to the heart of a petitioner’s 5

claim, can justify an adverse credibility finding, and can combine with other 6
factors casting doubt on credibility to support an adverse credibility finding

. 7
But it does not follow that every instance of inconsistency is by itself 8
sufficiently probative of dishonesty to satisfy the substantial evidence 9

re quirement. See Hong Fei , 891 F.3d at 77

. In this instance, neither the IJ nor 10
the BIA purported to find Singh not credible base d solely on this 11
inconsistency. They relied on the combined force of four inconsistencies, as to 12

which we have concluded that thr ee of the four were neither genuine 13
inconsistencies nor permissible bases for doubting Singh’s credibility

. 14
Because three of the four bases for the adverse credibility finding are 15
disqualified, we consider whether the only remaining basis can support the 16

s ubstantial evidence requirement , and if so, whether the agency would 17
adhere to the adverse credibility finding relying on that basis alone

. Th e se 1817

- 2368 Singh v. Garland

25 issue s depend on a n e valuation of pertinent factors. The more serious the 1
inconsistency

— i.e. , the greater the importance of the fact upon which 2
inconsistency is found for the success of the petition and t he more likely it is 3
that a truthful account would not have included the inconsistency

— the more 4
substantial that evidence is in casting doubt on t he petitioner’s credibility. By 5

the same token, the more trivial and inconsequential the inconsistency , and 6

t he more likely it is that the inconsistency has an innocent explanation such as 7
mistake, or differing perceptions , rather than dishonesty (especial ly on the 8
part of the applicant) , the less support that inconsistency provides for an 9
adverse credibility finding

. 10

In view of the insignificance of whether Jassal did or did not 11
accompany Singh and his father when they went to the police station, and the 12
high likelihood that the inconsistency is attributable to an innocent 13
explanation, such as mistake or differing recollections or perceptions, this 14
inconsistency ga ve no substantial support to the proposition that Singh 15

fabricated his claim or any part of it

. It therefore would not comply with the 16
substantial evidence requirement of 5 U.S.C. § 706 (2) (e) and 8 U.S.C. 17
§ 1252(b)(4)(B) for the agency to base its adverse credibility finding on this 1817

- 2368 Singh v. Garland

26 inconsistency alone. We further conclude that, even if the trivial inconsistency 1
with Jassal were legally sufficient to support the adverse credibility finding, 2
the agency would not have adher ed to that finding in light of the errors we 3

have identified. 4
Without the adverse credibility finding, the agency gave no reason for 5
rejecting Singh’s petition. We therefore vacate the agency’s ruling and 6
remand for further proceedings. 7

CONCLUSION 8

For th e foregoing reasons, we GRANT the petition, VACATE the 9

decision of the BIA, and REMAND the case to the BIA for further proceedings 10
consistent with this opinion. 11