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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **14 th**  **day of July, two thousand sixteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **DENNIS JACOBS,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **FNU GURBAX-SINGH, AKA GURBAX** 14 **SINGH,** 15 Petitioner **,** 16 17 **v. 15-1244** 18 **NAC** 19 **LORETTA E. LYNCH, UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER:** Genet Getachew, Law Office of Genet 25 Getachew, Brooklyn, New York. 26 27 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 28 Assistant Attorney General; Justin 29 Markel, Nancy E. Friedman, Senior 30 Litigation Counsel, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, D.C. 342 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner FNU Gurbax-Singh, a native and citizen of India, 5 seeks review of a March 19, 2015, decision of the BIA affirming 6 a January 18, 2013, decision of an Immigration Judge (“IJ”) 7 denying Gurbax-Singh’s application for asylum, withholding of 8 removal, and relief under the Convention Against Torture 9 (“CAT”). In re FNU Gurbax-Singh, No. A200 595 756 (B.I.A. Mar. 10 19, 2015), aff’g No. A200 595 756 (Immig. Ct. N.Y. City Jan. 11 18, 2013). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 We have reviewed both the IJ’s and the BIA’s opinions “for 14 the sake of completeness.” Wangchuck v. DHS , 448 F.3d 524, 528 15 (2d Cir. 2006). The applicable standards of review are well 16 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 17 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). Asylum 18 applications such as Gurbax-Singh’s are governed by the REAL 19 ID Act, which provides that the agency, “[c]onsidering the 20 totality of the circumstances . . . may base a credibility 21 determination on” inconsistencies in an applicant’s statements 223 and other record evidence “without regard to whether” those 1 inconsistencies go “to the heart of the applicant’s claim.” 2 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 3 Gurbax-Singh argues that the IJ should not have relied on 4 the record of the credible fear interview to find him not 5 credible, and that the IJ improperly analyzed his demeanor. As 6 the Government points out, Gurbax-Singh raised no demeanor 7 challenge before the BIA, and thus failed to exhaust this issue. 8 Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 119-20 (2d 9 Cir. 2007). In any event, the IJ did not rely on demeanor in 10 making the adverse credibility determination. Gurbax-Singh 11 has waived any challenge to the remainder of the IJ’s findings 12 by failing to challenge them in his brief, and they supply 13 sufficient basis, for the adverse credibility determination. 14 See Shunfu Li v. Mukasey , 529 F.3d 141, 146-47 (2d Cir. 2008). 15 We conclude that the IJ reasonably relied on the record of 16 the credible fear interview in finding Gurbax-Singh not 17 credible. We require the agency to “closely examine each . . 18 . interview before concluding that it represents a sufficiently 19 accurate record of the alien’s statements to merit 20 consideration in determining whether the alien is credible.” 21 Ramsameachire v. Ashcroft , 357 F.3d 169, 179 (2d Cir. 2004); 224 Ming Zhang v. Holder , 585 F.3d 715, 725 (2d Cir. 2009). A 1 credible fear interview is sufficiently reliable if it contains 2 a “‘verbatim account or transcript’ of the alien’s statements,” 3 was “‘designed to elicit the details of an asylum claim,’” and 4 contains no indication that the alien revealed information 5 reluctantly or failed to understand the interpreter’s 6 translations. Ming Zhang , 585 F.3d at 721 (quoting Guan v. 7 Gonzales , 432 F.3d 391, 396 (2d Cir. 2005)). 8 Here, the IJ conducted a lengthy analysis of the 9 reliability of the interview record, and found that: 10 Gurbax-Singh had a Punjabi interpreter and expressed no 11 difficulties understanding the interpreter; although the 12 transcript is not verbatim, it gives the questions asked and 13 Gurbax-Singh’s responses, and reveals that Gurbax-Singh was 14 given an opportunity to provide the details of his claim; and 15 Gurbax-Singh did not allege t hat any portion of the interview 16 record was inaccurate or that he was coerced into providing 17 specific answers. Gurbax-Singh’s attorney objected to the 18 admission of the interview only solely on the ground that she 19 had not had a chance to review it prior to the hearing, not 20 because the record was unreliable. Given these facts, the IJ 21 did not err in relying on the interview record in addressing 225 Gurbax-Singh’s credibility. See Ming Zhang , 585 F.3d at 721, 1 725. 2 Gurbax-Singh’s brief argues that the record is unreliable 3 because he was not allowed to review it before he signed it. 4 He raises this issue for the first time in this Court. 5 Accordingly, it is unexhausted and we decline to address it. 6 Lin Zhong , 480 F.3d at 123. 7 Moreover, the inconsistency between the credible fear 8 interview and Gurbax-Singh’s testimony sup ports the adverse 9 credibility determination. Xiu Xia Lin , 534 F.3d at 163-64. 10 During the credible fear interview Gurbax-Singh reported one 11 arrest and beating by police in January 2009. However, he 12 testified that he was beaten three times in 2007, 2008, and 2009, 13 and that he was never harmed in January 2009. The IJ was not 14 required to credit Gurbax-Singh’s explanation that he was 15 confused and forgot, as it did not resolve why Gurbax-Singh’s 16 memory was improved two years after the interview. Majidi v. 17 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 18 Given the IJ’s reasonable reliance on the credible fear 19 interview, and Gurbax-Singh’s failure to challenge any of the 20 IJ’s additional findings, the IJ’s adverse credibility 21 determination is supported by substantial evidence. See 226 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin , 534 F.3d at 165-66. The 1 adverse credibility determination is dispositive of asylum, 2 withholding of removal, and CAT relief because all three claims 3 were based on the same factual predicate. Paul v. Gonzales , 4 444 F.3d 148, 156-57 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our rev iew, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 12 34.1(b). 13
FOR THE COURT: 14 Catherine O = Hagan Wolfe, Clerk 15