17-550 

Singh v. Sessions 

BIA 

Hom, IJ 

A206 443 902

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 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, 

on the 28th day of August, two thousand eighteen. 

PRESENT: 

JON O. NEWMAN,

DENNIS JACOBS, 

RICHARD C. WESLEY,

Circuit Judges. 

_____________________________________ 

FATEH SINGH, 

 Petitioner, 

v. 17-550 

 NAC 

JEFFERSON B. SESSIONS III, 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Dalbir Singh, New York, NY. 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Kiley Kane, 

Senior Litigation Counsel; Lynda A. 

Do, Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC. 
2

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 GRANTED, and the case is REMANDED. 

 Petitioner Fateh Singh, a native and citizen of India, 

seeks review of a January 27, 2017, decision of the BIA 

affirming a September 28, 2015, decision of an Immigration 

Judge (“IJ”) denying Singh’s application for asylum, 

withholding of removal, and relief under the Convention 

Against Torture (“CAT”). In re Fateh Singh, No. A 206 443 

902 (B.I.A. Jan. 27, 2017), aff’g No. A 206 443 902 (Immig. 

Ct. N.Y. City Sept. 28, 2015). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

Under the circumstances of this case, we have reviewed 

both the IJ’s and BIA’s decisions “for the sake of 

completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 

524, 528 (2d Cir. 2006). We review the agency’s adverse 

credibility determinations under a substantial evidence 

standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 
3

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The governing 

REAL ID Act credibility standard provides as follows: 

Considering the totality of the circumstances, and 

all relevant factors, a trier of fact may base a 

credibility determination on . . . the consistency 

between the applicant’s or witness’s written and 

oral statements . . . the internal consistency of 

each such statement, the consistency of such 

statements with other evidence of record . . . and 

any inaccuracies or falsehoods in such statements, 

without regard to whether an 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). “We defer . . . to an IJ’s 

credibility determination unless . . . it is plain that no 

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin, 534 F.3d at 167. 

 In this case, the petitioner alleged persecution by 

governmental authorities because of his membership in a proSikh independence party. He testified in detail that on three 

occasions he was arrested, detained, and severely beaten. 

These episodes occurred in 2009, 2012, and 2013. The agency 

concluded that he was not credible because of what it 

considered two inconsistencies in his testimony. The first 

concerned his account of the medical treatment he received 
4

after the 2009 and 2012 episodes. The second concerned the 

source of funds expended on the petitioner’s behalf. 

 Petitioner was first questioned about medical treatment 

he received after the 2012 episode. He said treatment was 

provided by a “local doctor” in the village. Certified 

Administrative Record (“CAR”) 143. Then, asked about 

treatment after the 2009 episode, he said, “I received 

treatment from the same village doctor.” CAR 145. Asked about 

treatment after the 2013 episode, he said, “I didn’t receive 

any treatment.” Id. Government counsel confronted petitioner 

as follows, “Now you just testified after all three beatings 

you received medical attention from a local village 

official.” CAR 146. The Petitioner answered, “I received 

treatment two times, not three times.” Id. When Government 

counsel persisted, stating, “[Y]ou stated you were treated by 

the same village helper who treated you in March 2012 and who 

treated you in November 2013,” id., the Petitioner replied, 

“I said I was treated once by the village doctor.” Id. 

Government counsel then said, “Sir, we can replay the tape.” 

Id. The IJ then said, “We don’t have to.” The petitioner 

clarified that after his first beating, he was treated at a 
5

hospital by Dr. J.P. Gupta. Exhibit 3E is a “medical 

certificate” reporting that Dr. J.P. Gupta from J.P. Surgical 

Hospital treated Fateh Singh for “lash injuries” on November 

2, 2009. 

 The IJ concluded that there was an inconsistency between 

the petitioner’s stating that he was twice treated by “a 

pharmacist trained medical person” in a “village facility” 

and his testimony and an exhibit showing he was treated by 

Dr. Gupta at a hospital. CAR 66. Although there might be an 

inconsistency, it is also possible that the IJ was led astray 

by the questioning of Government counsel, who incorrectly 

asserted that the petitioner said he received treatment from 

a local village official on three occasions. The petitioner 

refuted this incorrect statement of his testimony by 

asserting that he was treated once by the village doctor and 

once by Dr. Gupta at a hospital, the latter assertion 

corroborated by the doctor’s certificate. 

 With respect to funds, the petitioner testified that the 

money used to pay police officers to secure his release from 

detention came from people to whom his farming family sold 

grains and also from a bank. CAR 159. The petitioner testified 
6

that the money “to reach here” came from the sale of land 

that was his but was “on my grandfather’s name.” Id. 161. 

The IJ concluded that the petitioner “testified 

inconsistently that the source of the money that was used to 

pay for his alleged release was based upon property owned by 

his grandfather who allegedly sold portions of it to acquire 

funds used by” the petitioner. CAR 66. The IJ misapprehended 

what the petitioner had said. He had testified that the land 

sale funds were used “to reach here,” i.e., to enable him to 

travel to the United States. 

In considering the second of the two alleged 

inconsistencies relied on to find the petitioner not 

credible, we encounter a threshold matter. With respect to 

the source of funds, the argument portion of the Government’s 

brief makes no attempt to support the credibility conclusion 

on the ground of an alleged inconsistency, arguably 

forfeiting any reliance on that ground. For his part, the 

petitioner’s brief also makes no mention of the alleged 

discrepancy concerning source of funds, an omission that the 

Government contends shows he has “waived any challenge to the 

agency’s finding.” Br. for Respondent at 18 n.6. The 
7

Government cites Ahmed v. Holder, 624 F.3d 150, 153 (2d Cir. 

2010), but that decision concerned forfeiture of an entire 

“ruling,” not one of multiple bases for a ruling such as lack 

of credibility. 

Whether or not the omissions from the briefs of both 

sides would entitle us to deem an argument forfeited by either 

side, we are not required to do so, and we elect to consider 

both of the alleged inconsistencies. The matter of the funds 

is plainly not an inconsistency providing a valid basis for 

an adverse credibility finding. The IJ simply misunderstood 

the testimony, an understandable occurrence by a hearing 

officer obliged to adjudicate several cases in a single day 

and promptly dictate findings. The matter of the medical 

treatment is an arguable inconsistency, but rendered 

uncertain by the misleading questioning of Government 

counsel. Cf. Gao v. BIA, 482 F.3d 122, 129 (2d Cir. 2007) (IJ 

improperly adopted assumption in cross-examiner’s question). 

Under all the circumstances, we are left with an 

insufficient basis to uphold the finding of lack of 

credibility, and the case must be remanded for a new hearing. 

See Jin Chen v. U.S. Dept. of Justice, 426 F.3d 104, 113 (2d 
8

Cir. 2005) (“[W]e will reverse where [an] adverse credibility 

determination is based upon . . . an incorrect analysis of 

the testimony.”) (internal quotation marks omitted). At the 

hearing the details of the source of funds and the providers 

of medical treatment can be fairly and fully ascertained for 

such relevance, if any, as they might bear on the credibility 

of the petitioner’s account of his three episodes of 

persecution. 

 For the foregoing reasons, the petition for review is 

GRANTED, ands the case is REMANDED to the BIA so that an IJ 

may conduct a new hearing. As we have completed our review, 

any stay of removal that the Court previously granted in this 

petition is VACATED, and any pending motion for a stay of 

removal in this petition is DISMISSED as moot. Any pending 

request for oral argument in this petition is DENIED in 

accordance with Federal Rule of Appellate Procedure 34(a)(2), 

and Second Circuit Local Rule 34.1(b). 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, 

Clerk of Court