14-3434 (L) Singh v. Lynch BIA Nelson, IJ A089 714 653 

### 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 **5 th** **day of January, two thousand sixteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HARMESH SINGH,** 13 Petitioner **,** 14 15 **v. 14-3434(L),** 16 **15-507(Con)** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Jaspreet Singh, Jackson Heights, New 24 York. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; John S. 28 Hogan, Assistant Director; Lindsay 29 Corliss, Trial Attorney, Office of 302 Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 UPON DUE CONSIDERATION of these petitions for review of two 4 Board of Immigration Appeals (“BIA”) decisions, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petitions for review 6

are DENIED. 7 Petitioner Harmesh Singh, a native and citizen of India, 8 seeks review of an August 29, 2014, decision of the BIA affirming 9 a September 25, 2012, decision of an Immigration Judge (“IJ”) 10 denying Singh’s application for asylum, withholding of removal, 11 and relief under the Convention Against Torture (“CAT”). In 12 re Harmesh Singh, No. A089 714 653 (B.I.A. Aug. 29, 2014), aff’g 13 No. A089 714 653 (Immig. Ct. N.Y. City Sept. 25, 2012). He also 14 seeks review of the BIA’s January 23, 2015, denial of his motion 15 to reconsider or reopen. In re Harmesh Singh , No. A089 714 653 16 (B.I.A. Jan. 23, 2015). We assume the parties’ familiarity 17 with the underlying facts and procedural history in this case. 18 As to the denial of asylum and other relief, we have 19 reviewed the IJ’s decision, including the portions not 20 explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales , 432 21 F.3d 391, 394 (2d Cir. 2005). The applicable standards of 223 review are well established. See8 U.S.C. § 1252(b)(4)(B); 1 Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 2

For asylum applications, like Singh’s, governed by the REAL 3 ID Act, the agency may, “[c]onsidering the totality of the 4 circumstances,” base a credibility finding on inconsistencies 5 between the applicant’s statements and other evidence, “without 6 regard to whether” they go “to the heart of the applicant’s 7 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 8 534 F.3d 162, 163-64 (2d Cir. 2008). “We defer . . . to an IJ’s 9 credibility determination unless, from the totality of the 10 circumstances, it is plain that no reasonable fact-finder could 11 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 12 at 166. 13 Substantial evidence supports the adverse credibility 14 determination. The IJ reasonably relied on inconsistencies 15 between Singh’s testimony and his documentary evidence. The 16 letter Singh submitted, from a nursing home where he was treated 17 after his second alleged beating by police, stated that he was 18 comatose, but Singh did not mention any such severe injury. 19 This failure to discuss the serious nature of his injuries is 204 particularly damaging to his credibility. See Xian Tuan Ye v. 1 Dep’t of Homeland Sec. , 446 F.3d 289, 295 (2d Cir. 2006). 2 Singh’s documentary evidence differ ed from his testimony 3 in other ways that further called into question whether he was 4 a political activist who had been targeted by the police and 5 the opposition party. His wife’s letter explained that she was 6 being harassed by police, but Singh testified that his wife and 7 children were safe in India. Further, his wife wrote that Singh 8 was arrested “so many times” in India, while Singh testified 9 that he was arrested only twice; the IJ found that “so many 10 times” meant more than twice, and a reasonable fact-finder would 11 not be compelled to accept Singh’s argument to the contrary. 12 Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005); Siewe 13 v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007). 14 The IJ also reasonably gave limited weight to Singh’s 15 additional documentary evidence, as the letters omitted 16 material information, were not properly authenticated, or were 17 prepared by parties unavailable for cross-examination. Xiao 18 Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 19 2006); Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 20 Accordingly, given that the inconsistencies call into question 215 the main allegations of past harm, substantial evidence 1 supports the agency’s adverse credibility determination, which 2 is dispositive of asylum, withholding of removal, and CAT 3 relief, because all three claims relied on the same factual 4 predicate. Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 5 2006). 6 We also deny the second petition, reviewing the BIA’s 7 denial of reconsideration and reopening for abuse of 8 discretion. Nolasco v. Holder , 637 F.3d 159, 162 (2d Cir. 2011) 9 (reconsideration); Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 10 2006) (reopening). 11 To the extent Singh requested reconsideration, he disputed 12 the IJ’s adverse credibility determination by arguing that the 13 IJ could have interpreted the record differently. As the BIA’s 14 review is limited to a determination of whether factual findings 15 are clearly erroneous, the BIA did not abuse its discretion by 16 denying reconsideration. It is not permitted to reweigh or 17 reinterpret the facts. See8 C.F.R. § 1003.1(d)(3)(i). 18 To the extent that Singh’s motion requested reopening, he 19 asserted that the Bharitya Janata Party’s victory in the 20 national elections of 2014 established changed country 216 conditions, and resulted in increased police harassment of his 1 wife. However, Singh did not meaningfully rebut the underlying 2 adverse credibility determination, and accordingly the agency 3 did not abuse its discretion in refusing to reopen proceedings. 4
See Kaur v. BIA , 413 F.3d 232, 234 (2d Cir. 2005); Qin Wen Zheng 5 v. Gonzales , 500 F.3d 143, 147 (2d Cir. 2007). 6 For the foregoing reasons, the petitions for review are 7 DENIED. As we have completed our rev iew, any stay of removal 8 that the Court previously granted in these petitions is VACATED, 9 and any pending motion for a stay of removal in these petitions 10 is DISMISSED as moot. Any pending request for oral argument 11 in these petitions is DENIED in accordance with Federal Rule 12 of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 13 34.1(b). 14
FOR THE COURT: 15 Catherine O = Hagan Wolfe, Clerk 16