16-458 Singh v. Sessions BIA Vomacka, IJ A200 239 747 

### 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 **16 th**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 **MALEK SINGH,** 12 Petitioner **,** 13 14 **v. 16-458** 15 **NAC** 16 **JEFFERSON B. SESSIONS III,** 17 **UNITED STATES ATTORNEY GENERAL,** 18 Respondent **.** 19

**_____________________________________** 20 21 **FOR PETITIONER:** Amy Nussbaum Gell, Gell & Gell, New 22 York, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Anthony 26 C. Payne, Assistant Director; Liza 27 S. Murcia, Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 Malek Singh, a native and citizen of India, 6 seeks review of a January 19, 2016, decision of the BIA affirming 7 an August 22, 2014, decision of an Immigration Judge (“IJ”) 8 denying Singh’s application for asylum, withholding of removal, 9 and relief under the Convention Against Torture (“CAT”). In 10 re Malek Singh, No. A 200 239 747 (B.I.A. Jan. 19, 2016), aff’g 11

No. A 200 239 747 (Immig. Ct. N.Y. City Aug. 22, 2014). We 12 assume the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed both 15 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales , 16 432 F.3d 391, 394 (2d Cir. 2005). The standards of review are 17 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 19 The agency may, “[c]onsidering the totality of the 20 circumstances, . . . base a credibility determination on the 213 demeanor, candor, or responsiveness of the applicant or 1 witness,” or on inconsistencies or omissions in an applicant’s 2 oral and written statements and other record evidence, 3 regardless of whether any such discrepancies “go[] to the heart 4 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 5 Xia Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s 6 credibility determination unless . . . it is plain that no 7 reasonable fact-finder could make such an adverse credibility 8 ruling.” Xiu Xia Lin , 534 F.3d at 167. The adverse 9 credibility determination in the present case is supported by 10 substantial evidence. 11 The agency reasonably relied on multiple inconsistencies 12 in Singh’s statements regarding his level of participation in 13 the Indian National Lok Dal party (“Lok Dal”). He gave changing 14 statements about whether he was involved with protests, and 15 whether he was a member. See 8 U.S.C. § 1158(b)(1)(B)(iii); 16 Xiu Xia Lin , 534 F.3d at 166-67. The agency was not compelled 17 to accept Singh’s explanations that he did not remember the 18 protests at the time he wrote his application and that he was 19 scared during the credible fear interview. Majidi v. Gonzales , 20 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more 214 than offer a plausible explanation for his inconsistent 1 statements to secure relief; he must demonstrate that a 2 reasonable fact-finder would be compelled to credit his 3 testimony.”(quotation marks and citation omitted)). 4 The adverse credibility determination is bolstered by 5 inconsistencies in Singh’s statements about whether and when 6 he was warned about his political activity and his lack of 7 coherent responses to questions about the warnings. Li Hua Lin 8 v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) (“We 9 can be still more confident in our review of observations about 10 an applicant’s demeanor where, as he re, they are supported by 11 specific examples of inconsistent testimony.”). And the 12 agency also reasonably relied on Singh’s evolving and often 13 contradictory explanations for why a letter from Lok Dal was 14 filed late because it reflected a lack of familiarity with his 15 own evidence. See Xiu Xia Lin , 534 F.3d at 167 (holding that 16 “an IJ may rely on any inconsistency . . . as long as the 17 ‘totality of the circumstances’ establishes that an asylum 18 applicant is not credible”). 19 Nor could Singh provide any explanation of an identical 20

error that appeared in his asylum application and two affidavits 215 allegedly independently written and prepared in India. See Mei 1 Chai Ye v. U.S. Dep’t of Justice , 489 F.3d 517, 524 (2d Cir. 2 2007) (“[S]triking similarities between affidavits are an 3 indication that the statements are ‘canned.’”). Singh’s 4 additional arguments were not properly exhausted and will not 5 be considered. His contentions that the IJ failed to develop 6 the record and gave too much weight to his credible fear 7 interview were not raised before the agency. See Foster v. INS , 8 376 F.3d 75, 78 (2d Cir. 2004) (requiring exhaustion of issues 9 before the agency). 10 Given the foregoing findings, substantial evidence 11 supports the adverse credibility determination. See Xiu Xia 12 Lin , 534 F.3d at 167; Xian Tuan Ye v. U.S. Dep’t of Justice , 13 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a material 14 inconsistency in an aspect of [an applicant]’s story that served 15

as an example of the very persecution from which he sought asylum 16 . . . afford[s] substantial evidence to support the adverse 17 credibility finding” (internal quotation marks omitted)). 18 Contrary to Singh’s argument, the adverse credibility 19 determination was dispositive of all relief because it called 20 into question his political activities and past harm, thus 216 infecting his allegation that the police refused to help him. 1
See Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) (“So 2 a single false document or a single instance of false testimony 3 may (if attributable to the petitioner) infect the balance of 4 the alien’s uncorroborated or unauthenticated evidence.”); see 5 also Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7

DENIED. 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10