15-1244 

Gurbax-Singh v. Lynch 

BIA 

Poczter, IJ 

A200 595 756

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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

14th 4 day of July, two thousand sixteen. 

5 

6 PRESENT: 

7 ROBERT A. KATZMANN, 

8 Chief Judge,

9 DENNIS JACOBS, 

10 SUSAN L. CARNEY,

11 Circuit Judges. 

12 _____________________________________ 

13 

14 FNU GURBAX-SINGH, AKA GURBAX 

15 SINGH, 

16 Petitioner, 

17 

18 v. 15-1244 

19 NAC 

20 LORETTA E. LYNCH, UNITED STATES 

21 ATTORNEY GENERAL, 

22 Respondent. 

23 _____________________________________ 

24 

25 FOR PETITIONER: Genet Getachew, Law Office of Genet 

26 Getachew, Brooklyn, New York. 

27 

28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

29 Assistant Attorney General; Justin 

30 Markel, Nancy E. Friedman, Senior 

31 Litigation Counsel, Office of 

32 Immigration Litigation, United 

33 States Department of Justice, 

34 Washington, D.C. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

2 Board of Immigration Appeals (“BIA”) decision, it is hereby 

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner FNU Gurbax-Singh, a native and citizen of India, 

6 seeks review of a March 19, 2015, decision of the BIA affirming 

7 a January 18, 2013, decision of an Immigration Judge (“IJ”) 

8 denying Gurbax-Singh’s application for asylum, withholding of 

9 removal, and relief under the Convention Against Torture 

10 (“CAT”). In re FNU Gurbax-Singh, No. A200 595 756 (B.I.A. Mar. 

11 19, 2015), aff’g No. A200 595 756 (Immig. Ct. N.Y. City Jan. 

12 18, 2013). We assume the parties’ familiarity with the 

13 underlying facts and procedural history in this case. 

14 We have reviewed both the IJ’s and the BIA’s opinions “for 

15 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 

16 (2d Cir. 2006). The applicable standards of review are well 

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

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

19 applications such as Gurbax-Singh’s are governed by the REAL 

20 ID Act, which provides that the agency, “[c]onsidering the 

21 totality of the circumstances . . . may base a credibility 

22 determination on” inconsistencies in an applicant’s statements 
3

1 and other record evidence “without regard to whether” those 

2 inconsistencies go “to the heart of the applicant’s claim.” 

3 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 

4 Gurbax-Singh argues that the IJ should not have relied on 

5 the record of the credible fear interview to find him not 

6 credible, and that the IJ improperly analyzed his demeanor. As 

7 the Government points out, Gurbax-Singh raised no demeanor 

8 challenge before the BIA, and thus failed to exhaust this issue. 

9 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d 

10 Cir. 2007). In any event, the IJ did not rely on demeanor in 

11 making the adverse credibility determination. Gurbax-Singh 

12 has waived any challenge to the remainder of the IJ’s findings 

13 by failing to challenge them in his brief, and they supply 

14 sufficient basis, for the adverse credibility determination. 

15 See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008). 

16 We conclude that the IJ reasonably relied on the record of 

17 the credible fear interview in finding Gurbax-Singh not 

18 credible. We require the agency to “closely examine each . . 

19 . interview before concluding that it represents a sufficiently 

20 accurate record of the alien’s statements to merit 

21 consideration in determining whether the alien is credible.” 

22 Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004); 
4

1 Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). A 

2 credible fear interview is sufficiently reliable if it contains 

3 a “‘verbatim account or transcript’ of the alien’s statements,” 

4 was “‘designed to elicit the details of an asylum claim,’” and 

5 contains no indication that the alien revealed information 

6 reluctantly or failed to understand the interpreter’s 

7 translations. Ming Zhang, 585 F.3d at 721 (quoting Guan v. 

8 Gonzales, 432 F.3d 391, 396 (2d Cir. 2005)). 

9 Here, the IJ conducted a lengthy analysis of the 

10 reliability of the interview record, and found that: 

11 Gurbax-Singh had a Punjabi interpreter and expressed no 

12 difficulties understanding the interpreter; although the 

13 transcript is not verbatim, it gives the questions asked and 

14 Gurbax-Singh’s responses, and reveals that Gurbax-Singh was 

15 given an opportunity to provide the details of his claim; and 

16 Gurbax-Singh did not allege that any portion of the interview 

17 record was inaccurate or that he was coerced into providing 

18 specific answers. Gurbax-Singh’s attorney objected to the 

19 admission of the interview only solely on the ground that she 

20 had not had a chance to review it prior to the hearing, not 

21 because the record was unreliable. Given these facts, the IJ 

22 did not err in relying on the interview record in addressing 
5

1 Gurbax-Singh’s credibility. See Ming Zhang, 585 F.3d at 721, 

2 725. 

3 Gurbax-Singh’s brief argues that the record is unreliable 

4 because he was not allowed to review it before he signed it. 

5 He raises this issue for the first time in this Court. 

6 Accordingly, it is unexhausted and we decline to address it. 

7 Lin Zhong, 480 F.3d at 123. 

8 Moreover, the inconsistency between the credible fear 

9 interview and Gurbax-Singh’s testimony supports the adverse 

10 credibility determination. Xiu Xia Lin, 534 F.3d at 163-64. 

11 During the credible fear interview Gurbax-Singh reported one 

12 arrest and beating by police in January 2009. However, he 

13 testified that he was beaten three times in 2007, 2008, and 2009, 

14 and that he was never harmed in January 2009. The IJ was not 

15 required to credit Gurbax-Singh’s explanation that he was 

16 confused and forgot, as it did not resolve why Gurbax-Singh’s 

17 memory was improved two years after the interview. Majidi v. 

18 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 

19 Given the IJ’s reasonable reliance on the credible fear 

20 interview, and Gurbax-Singh’s failure to challenge any of the 

21 IJ’s additional findings, the IJ’s adverse credibility 

22 determination is supported by substantial evidence. See
6

1 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66. The 

2 adverse credibility determination is dispositive of asylum, 

3 withholding of removal, and CAT relief because all three claims 

4 were based on the same factual predicate. Paul v. Gonzales, 

5 444 F.3d 148, 156-57 (2d Cir. 2006). 

6 For the foregoing reasons, the petition for review is 

7 DENIED. As we have completed our review, any stay of removal 

8 that the Court previously granted in this petition is VACATED, 

9 and any pending motion for a stay of removal in this petition 

10 is DISMISSED as moot. Any pending request for oral argument 

11 in this petition is DENIED in accordance with Federal Rule of 

12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

13 34.1(b). 

14 FOR THE COURT: 

15 Catherine O=Hagan Wolfe, Clerk