14-2388 (L) 

Singh v. Lynch 

BIA 

Cheng, IJ 

A098-244-266/267 

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 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

25th day of February, two thousand sixteen. 

PRESENT: 

REENA RAGGI,

RICHARD C. WESLEY, 

DEBRA ANN LIVINGSTON,

Circuit Judges. 

_____________________________________ 

AVTAR SINGH, PUSHPINDER KAUR, 

 Petitioners, 

v. 14-2388(L), 

 15-883(Con) 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONERS: Jeffrey E. Baron, Baron & Shelkin, 

 P.C., New York, New York. 

FOR RESPONDENT: Benjamin C. Mizer, Principal 

Assistant Attorney General, Justin 

R. Markel, Senior Litigation 
2

Counsel, Margaret A. O’Donnell, 

Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, D.C. 

UPON DUE CONSIDERATION of these petitions for review of 

Board of Immigration Appeals (“BIA”) decisions, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petitions for review 

are DENIED. 

 In the lead petition, petitioners Avtar Singh and 

Pushpinder Kaur, natives and citizens of India, seek review of 

a June 6, 2014 decision of the BIA affirming a July 18, 2013 

decision of an Immigration Judge (“IJ”) denying their 

application for withholding of removal. See In re Avtar Singh, 

Pushpinder Kaur, Nos. A098 244 266/267 (B.I.A. June 6, 2014), 

aff’g Nos. A098 244 266/267 (Immig. Ct. N.Y.C. July 18, 2013). 

In the consolidated petition, petitioners seek review of a 

February 24, 2015 decision of the BIA denying reconsideration 

of the denial of their motion to reopen. See In re Avtar Singh, 

Pushpinder Kaur, Nos. A098 244 266/267 (B.I.A. Feb. 24, 2015). 

We assume the parties’ familiarity with the underlying facts 

and procedural history in this case. 
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1. Denial of Application for Withholding of Removal 

 The lead petition challenges the adverse credibility 

determination on which the denial of withholding was based. 

Under the circumstances of this case, we review the IJ’s 

decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t 

of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 

 Where, as here, an application is governed by the REAL ID 

Act of 2005, the agency may, in light of “the totality of the 

circumstances,” base an adverse credibility determination on 

an asylum applicant’s “demeanor, candor, or responsiveness,” 

the plausibility of his account, and inconsistencies in his 

statements, “without regard to whether” those inconsistencies 

go “to the heart of the applicant’s claim.” 8 U.S.C. 

§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 

165 (2d Cir. 2008). “We defer therefore to an IJ’s credibility 

determination unless, from the totality of the circumstances, 

it is plain that no reasonable fact-finder could make such an 

adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 
4

 The IJ reasonably relied on discrepancies between Singh’s 

testimony and record evidence in finding him not credible.1

 

Singh testified that on October 1, 2007, his father’s murderers 

attacked him, and he spent the following three days in the 

hospital. On cross-examination, Singh confirmed that he did 

not have to go back for follow-up and did not see the doctor 

after October 3. A doctor’s note, however, stated that Singh 

“was under [the doctor’s] treatment” from October 1 to October 

6, 2007. Certified Administrative Record (“CAR”) 236. When 

confronted with this date discrepancy, Singh explained that he 

“did get examined by” the doctor, in that he went to “get the 

medicine from him.” CAR 165. A reasonable adjudicator would 

not be compelled to credit this explanation and, thus, the IJ 

was entitled to reject it. See Majidi v. Gonzales, 430 F.3d 

77, 80 (2d Cir. 2005). 

 The IJ further observed that the doctor’s note said nothing 

about Singh’s hospitalization and that it was written in 

English. When pressed on these points, Singh stated that he 

 

1 Because Singh’s wife was a derivative beneficiary of Singh’s 

application for relief, the case therefore turned on Singh’s 

credibility regarding the harm he suffered in India. 

Accordingly, we here refer to Singh as petitioner for ease of 

reference.
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had no record from the hospital and that doctors give 

“medicines, prescriptions in English.” CAR 168. Again, these 

were not compelling explanations, particularly because the note 

said nothing about medicine or a prescription. See Majidi, 430 

F.3d at 80. Moreover, there was a second date discrepancy: 

Singh testified that he requested the letter in 2011, but the 

note was backdated to October 6, 2007. Singh offered no 

explanation for this discrepancy. 

 The IJ also reasonably found that Singh’s demeanor 

undermined his credibility. Because an IJ is in the best 

position to observe an applicant’s demeanor while testifying, 

we accord that finding deference. See Zhou Yun Zhang v. INS, 

386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other grounds 

by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 

2007). The IJ observed that Singh was hesitant when 

cross-examined about the doctor’s note and that certain of his 

other answers were “nonresponsive and sometimes evasive.” CAR 

49. This finding is supported by Singh’s inability to explain 

the discrepancies between his testimony and the doctor’s note. 

See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 

Cir. 2006) (“We can be still more confident in our review of 
6

observations about an applicant’s demeanor where, as here, they 

are supported by specific examples of inconsistent 

testimony.”). 

 We have considered Singh’s various challenges to the 

adverse credibility determination and find each to be without 

merit. Accordingly, we deny the lead petition for review. 

2. Denial of Motion for Reconsideration 

 The consolidated petition challenges the BIA’s denial of 

Singh’s motion for reconsideration of its denial of his motion 

to reopen. Both motions were based on three newly proffered 

documents: a letter from Singh’s doctor, which Singh claimed 

would surmount the adverse credibility determination; and an 

affidavit from his mother and a statement from an administrator 

at his daughter’s school, both of which, he claimed, would 

demonstrate his prima facie eligibility for asylum. 

 We review both the denial of a motion to reopen and the 

denial of a motion for reconsideration for abuse of discretion. 

See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Jin Ming 

Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). Although 

there was some confusion as to whether Singh’s supporting 

documents were timely filed, on the motion for reconsideration 
7

the BIA assessed Singh’s documents and concluded that, in any 

event, none warranted reopening. See 8 U.S.C. 

§ 1229a(c)(7)(B) (“The motion to reopen shall state the new 

facts that will be proven at a hearing to be held if the motion 

is granted, and shall be supported by affidavits or other 

evidentiary material.”). We identify no abuse of discretion 

in that decision. With respect to the second doctor’s note, 

Singh failed to explain why this more detailed note regarding 

his 2007 treatment was not available at his merits hearing in 

2013. Accordingly, the BIA did not abuse its discretion in 

denying his motion to reopen based on this evidence. See 8 

C.F.R. § 1003.2(c)(1) (providing that motion to reopen “shall 

not be granted” unless proffered evidence “was not available 

and could not have been discovered or presented at the former 

hearing”). 

 Singh also challenges the BIA’s rejection of the other two 

documents. His mother’s affidavit attested to ongoing threats 

from his attacker, Mohinder Singh, and the police. The BIA gave 

the document limited weight in light of the adverse credibility 

determination against Singh. This treatment was permissible. 

See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) 
8

(stating that “single instance of false testimony may (if 

attributable to the petitioner) infect the balance of the 

alien’s uncorroborated or unauthenticated evidence”). 

 The BIA deemed the school administrator’s statement 

unreliable because it was not sworn, made under penalty of 

perjury, or notarized. The BIA therefore concluded that it 

could not “be certain of the declarant’s identity, much less 

the reliability of the substance contained therein.” Special 

App’x 31. The BIA was within its discretion to draw this 

conclusion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 

315, 342 (2d Cir. 2006) (explaining that weight accorded to 

documentary evidence lies largely within agency’s discretion). 

 Accordingly, the BIA did not abuse its discretion in 

denying Singh’s motion for reconsideration, and his 

consolidated petition is therefore denied. 

3. Conclusion 

 For the foregoing reasons, the petitions for review are 

DENIED. As we have completed our review, any stays of removal 

that the Court previously granted in these petitions are 

VACATED, and any pending motion for stays of removal in these 

petitions is DISMISSED as moot. Any pending request for oral 
9

argument in these petitions is DENIED in accordance with Federal 

Rule of Appellate Procedure 34(a)(2), and Second Circuit Local 

Rule 34.1(b). 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court