16-1540 Singh v. Sessions BIA Poczter, IJ A205 579 919 

### 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 **8 th**  **day of May, two thousand seventeen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **RICHARD C. WESLEY,** 9 **DENNY CHIN,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **KHUSHWANT SINGH,** 14 Petitioner **,** 15 16 **v. 16-1540** 17 **NAC** 18 **JEFFERSON B. SESSIONS III, UNITED** 19 **STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Amy Nussbaum Gell, Gell & Gell, New 24 York, NY. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Linda S. 28 Wernery, Assistant Director; Steven 29 K. Uejio, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 332 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 Khushwant Singh, a native and citizen of India, 5 seeks review of an April 21, 2016, decision of the BIA affirming 6 a November 6, 2014, decision of an Immigration Judge (“IJ”) 7 denying Singh’s application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Khushwant Singh, No. A205 579 919 (B.I.A. Apr. 21, 2016), 10 aff’g No. A205 579 919 (Immig. Ct. N.Y. City Nov. 6, 2014). We 11 assume the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Under the circumstances of this case, we have considered 14 both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales , 15 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of 16 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu 17 Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). The 18 agency may, “considering the totality of the circumstances,” 19 base an adverse credibility ruling on an asylum applicant’s 20 “demeanor, candor, or responsiveness,” an applicant’s 21 internally inconsistent testimony, discrepancies between an 22 applicant’s oral and written statements, and discrepancies 233 between an applicant’s statements and other record evidence. 1 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 2 “We defer . . . to an IJ’s credibility determination unless 3 . . . it is plain that no reasonable fact-finder could make such 4 an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 5 Substantial evidence supports the agency’s determination 6 that Singh was not credible. First, the agency reasonably 7 relied on Singh’s internally inconsistent and evasive testimony 8 regarding whether he was harmed by the Indian police. 8 U.S.C. 9 § 1158(b)(1)(B)(iii). Singh initially testified that he was 10 harassed by the Indian police, but when asked to describe that 11 harassment, changed his testimony and said that he believed the 12 police “would have” harassed him. When asked to clarify if he 13 was “actually harassed by g overnment authorities,” Singh 14 indicated that he was threatened, but not harassed or 15 persecuted. When the IJ then asked Singh to explain why a 16 letter from his political party stated he was harassed, Singh 17 said that he was harassed, then said he was threatened, but was 18 unable to remember any details of what occurred or when. The 19 documentary evidence enhanced, rather than resolved, this 20 discrepancy. The letter from Singh’s party stated that Singh 21 and his family faced government harassment “many times” and the 22 harassment was what forced Singh to flee the country. And 234 Singh’s testimony conflicted with his asylum application and 1 other evidence, which did not mention that he was harassed or 2 threatened by the police. See Xiu Xia Lin , 534 F.3d at 166 n.3 3 (“An inconsistency and an omission are . . . functionally 4 equivalent” for credibility purposes). This discrepancy alone 5 provided substantial evidence for the adverse credibility 6 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 7 F.3d 289, 295 (2d Cir. 2006) (relying on single material 8 inconsistency as providing substantial evi dence for adverse 9 credibility determination). 10 And the adverse credibility determination was bolstered by 11 an additional inconsistency, Singh’s nonresponsive demeanor, 12 as well as the lack of rehabilitative corroborating evidence. 13 8 U.S.C. § 1158(b)(1)(B)(iii). Singh testified that his family 14 was harassed and threatened by government authorities after he 15 left India, but he denied that his father was tortured. Singh’s 16 father swore in an affidavit, however, that he was tortured. 17 The IJ was not compelled to accept Singh’s explanation that his 18 father and other family members were metaphorically “tortured” 19 by the mistreatment of Singh. As the IJ noted, Singh’s father 20 first wrote that Singh was in danger and separately stated, 21 “They also tortured me and my family.” See Majidi v. Gonzales , 22 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than 235 offer a plausible explanation for his inconsistent statements 1 to secure relief; he must demonstrate that a reasonable 2 fact-finder would be compelled to credit his testimony.’” 3 (quoting Zhou Yun Zhang v. U.S. INS , 386 F.3d 66, 76 (2d Cir. 4 2004)). 5 “We ‘afford particular deference in applying the 6 substantial evidence standard’ when reviewing an IJ's 7 credibility findings.” Jin Chen v. U.S. Dep’t of Justice , 426 8 F.3d 104, 113 (2d Cir. 2005) (quoting Zhou Yun Zhang , 386 F.3d 9 at 73-74). Particularly on cross examination, Singh was not 10 responsive. As the IJ noted, Singh did not adequately answer 11 questions about how many times he applied for a U.S. visa before 12 coming to the United States. See Shu Wen Sun v. BIA , 510 F.3d 13 377, 381 (2d Cir. 2007) (petitioner’s evasive and nonresponsive 14 testimony supported adverse credibility finding). Singh’s 15 explanation of confusion or interpretation problems is not 16 compelling because he confirmed that he understood the 17 interpreter during this problematic portion of his testimony. 18 See Majidi , 430 F.3d at 80-81. 19 The agency also reasonably concluded that Singh failed to 20 rehabilitate his claim with reliable corroborating evidence. 21 See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 22 (recognizing that “applicant’s failure to corroborate his

. . . 236 testimony may bear on credibility, because the absence of 1 corroboration in general makes an applicant unable to 2 rehabilitate testimony that has already been called into 3 question”). In particular, Singh did not produce letters to 4 corroborate that he lived in hiding for more than a year. His 5 explanation that he did not want his sisters-in-law who hid him 6 to get in trouble is unavailing: Singh submitted letters from 7 other non-blood relatives and had already placed the 8 sisters-in-law in danger by hiding with them. See Majidi , 430 9 F.3d at 80-81. 10 Given the foregoing inconsistencies regarding whether 11 Singh was harmed by the Indian police and whether his family 12 members were tortured, as well as Singh’s lack of responsiveness 13 and the lack of corroboration, the totality of the circumstances 14 supports the agency’s adverse credibility ruling. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167; Xian Tuan 16

Ye , 446 F.3d at 295. The adverse credibility determination is 17 dispositive of asylum, withholding of removal, and CAT relief 18 because all three claims were based on the same factual 19 predicate. Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 20 2006). 21 For the foregoing reasons, the petition for review is 22 DENIED. As we have completed our rev iew, any stay of removal 237 that the Court previously granted in this petition is VACATED, 1 and any pending motion for a stay of removal in this petition 2 is DENIED as moot. Any pending request for oral argument is 3 DENIED in accordance with Federal Rule of Appellate Procedure 4 34(a)(2), and Second Circuit Local Rule 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7