20

- 5 7 4 Singh v. Garland BIA Conroy , IJ A 20 5 935 367 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **4 t**  **h da**  **y of M**  **a r**  **c h**  **, two thousand twenty** 
**- two** 

**.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **RICHARD C. WESLEY,** 8 **MICHAEL H. PARK,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **MANPREET SINGH**  **,** 13 **Petitioner ,**  14 15
**v. 20** 

**- 5**  **7 4**  16 **NAC** 17 **MERRICK B. GARLAND**  **, UNITED**  18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER** : Deepti Vithal , Esq. , Richmond 23 Hill , NY

. 24 25 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 26 Assistant Attorney General ; Erica 27 B. Miles , Senior Litigation 282 Counsel ; Jaclyn E. Shea , Trial 1 Attorney , Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 D C. 5
UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

Petitioner Manpreet Singh , a native and citizen of India , 10

seeks review of a January 21 , 2020 , decision of the BIA 11
affirming a March 9 , 2018 , decision of an Immigration Judge 12

(“IJ”) , denying his application for asylum, withholding of 13
removal, and relief under the Convention Against Torture 14

(“CAT”)

. In re Manpreet Singh , No. A 20 5 935 367 (B.I.A. Jan. 15

21 , 2020 ), aff’g No. A 20 5 935 367 (Immig. Ct. N.Y. City Mar

. 16

9 , 201 8 ). We assume the parties’ familiarity with the 17
underlying facts and procedural history. 18

**I. Credibility and Corroboration**  19
Under the circumstances, we have review ed the decision 20
of the IJ as supplemented by the BIA. See Yan Chen v. 21

Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review adverse 22
credibility determinations for substantial evidence. See 23

8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 243 67, 76 (2d Cir. 2018). “Considering the totality of the 1

circumstances , and all relevant factors, a trier of fact may 2
base a credibility determination on t he demeanor, candor, or 3
responsiveness of the applicant or witness,

. . . the 4
consistency between the appli cant’s or witness’s written and 5
oral statements . . . , the internal consistency of each such 6
statement, [and] the consistency of such statements with 7
other evidence of record . . . without regard to whether an 8
inconsistency, inaccuracy, or falsehood goes to the heart of 9
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 10
defer . . . to an IJ’s credibility determination unless, from 11
the totality of the circumstances, it is plain that no 12

reasonable fact

- finder could make such an adverse credibility 13
ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 14

2008); accord Hong Fei Gao , 891 F.3d at 76. Substantial 15
evidence supports the adverse credibility determination. 16
The agency reasonably relied on inconsistencies between 17
Singh’s testimony and ot her evidence. See 8 U.S.C. 18

§ 1158(b)(1)(B)(iii)

. Singh gave contradictory statements 19
about his political activities, providing in his affidavit 20
that he distributed flyers door

- to

- door, but explicitly 214 den ying that he did so when testifying

. Singh also ma de 1
inconsistent statements about how long he hid in Delhi after 2
his first alleged attack by Congress Party members, stating 3
in his affidavit that he returned to his village after a few 4
months, but testifying that he remained in Delhi for three 5

years . He p rovided the specific day of a month that he was 6

release d from the hospital, but not the month or year that he 7
was hospitalized, and the day he gave was inconsistent with 8
the date in his affidavit. The IJ was not required to credit 9
Singh’s explanation that he forgot the dates and was too 10

“uneducated” to recall them, particularly as he provided 11
specific dates when preparing his application

. 12
The agency also reasonably concluded that Singh’s 13
corroborating evidence did not rehabilitate his credibility

. 14

See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 15

( a n alien’s “ failure to corroborate his

. . . testimony may 16
bear on credibility, because the absence of corroboration in 17
general makes an applicant unable to rehabilitate testimony 18

that has alr eady been called into question.” The agency did 19
not err in declining to give weight to Singh’s documentary 20

evidence. See Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 215 2013) ( “ We defer to the agency’s determination of the weight 1

afforded to an alien’s documentary evidence.” )

. An affidavit 2
from Singh’s father was prepared by an individual who 3
simultaneously translated Singh’s father ’s oral statement 4
from Punjabi to English and transcribed the statement in 5
English . The IJ did not err in declining to cre dit that 6

document because there was no evidence to confirm that the 7

translation was accurate. See Shunfu Li v. Mukasey , 529 F.3d 8
141, 149 (2d Cir. 2008) ( holding that “we afford IJs 9
considerable flexibility in determining the authenticity of 10

. . . documen ts from the totality of the evidence”); c f

. 11

8 C.F.R. § 1003.33 ( “ [A] ny foreign language document offered 12
by a party in a proceeding [in immigration court ] shall be 13
accompanied by an English language translation, as well as by 14
a certification signed by the translator

. ” ). Contrary to 15
Singh’s argument here, the IJ asked counsel to explain the 16
lack of certification. Singh also contends that the IJ 17
ignored country conditions evidence, but there is nothing in 18
the record to suggest that the IJ ignore d materi al evidence 19
given the IJ’s statement that he considered all of the 20
documents in the record and his acknowledgment of political 216 tensions in India. See Zhi Yun Gao v. Mukasey , 508 F.3d 86, 1
87 (2d Cir. 2007) ( agencies are not required to “expressly 2

parse or refute on the record each individual argument or 3
piece of evidence offered by the petitioner ” (quotation marks 4
omitted) )

. 5
Considering the multiple inconsistencies and lack of 6

reliable corroboration , substantial evidence supports the 7
agency’s adverse credibility determination. See 8 U.S.C. 8

§ 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. Th is 9
adverse credibility determination is dispositive of asylum, 10
withholding of removal and CAT relief becaus e all three claims 11
arose from the same factual predicate. See Paul v. Gonzales , 12
444 F.3d 148, 156

– 57 (2d Cir. 2006). 13

**II. Motion to Remand**  14

The BIA did not abuse its discretion by denying Singh’s 15

motion to remand for consideration of a neuropsychol o gical 16

assess ment that he obtained after his hearing. See Li Yong 17
Cao v. U.S. Dep’t of Justice , 421 F.3d 149, 157 (2d Cir. 2005) 18
(reviewing BIA’s denial of remand for abuse of discretion)

. 19
As the BIA found, the evidence was not previously unavailable 20
as required for remand for consideration of additional 217 evidence because Singh could have obtained the evaluation 1
prior to his hearing before the IJ. Id. at 156; see also 2

8 C.F.R. § 1003.2(c)(1). 3
Nor did the agency deprive Singh of due process in 4
declining to remand for consideration of the report. “ To 5
establish a violation of due process, an alien must show that 6

[] he was denied a full and fair opportunity to present h [is] 7

claims or th at the IJ or BIA otherwise deprived h [im] of 8

fundamental fairness.” Burger v. Gonzales , 498 F.3d 131, 134 9
(2d Cir. 2007) (quotation marks omitted). The BIA did not 10
err in concluding that Singh received due process because the 11
record does not show sufficient indicia of incompetency to 12
warrant an inquiry. “[T]he test for determin ing whether an 13
alien is competent to participate in immigration proceedings 14

is whether he

. . . has a rational and factual understanding 15
of the nature and object of the proceedings, can consult with 16
the attorney or representative if there is one, and has a 17
reasonable opportunity to examine and present evidence and 18

cross - examine witnesses.” Matter of M

- A

- M

- , 25 I. & N. Dec. 19
474, 479 (B

. I

. A

. 2011). Aliens in immigration proceedings 20
are presumed competent and, only when indicia of incompetency 218 present themse lves is the IJ required to render a competency 1

determination. Matter of J

- S

- S

- , 26 I. & N. Dec. 679, 681 2

(B

. I

. A

. 2015)

. Singh’s reliance on M

- A

- M

- is misplaced 3
because that case involved a pro se respondent diagnosed with 4
schizophrenia; in contrast, Singh was represented by counsel , 5
the record reflected that he had been able to give counsel a 6

detailed statement of events , and the psychologist’s report 7
reflected some cognitive disability but also that his 8
thoughts were “logical” and that h e was capable of “concrete 9
thinking.” Singh’s presentation of his evidence through 10

counsel evinced a “ meaningful ” opportunity to be heard , and 11
he was therefore not deprived of due process. Burger , 498 12

F.3d at 134

. 13
For the foregoing reasons, the petition for review is 14

DENIED

. All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe , 18 Clerk of Court 19