21-6145

Singh v. Garland

BIA

Factor, IJ

A208 927 626

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 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 10th day of May, two thousand twentyfour. 

PRESENT: 

DEBRA ANN LIVINGSTON,

Chief Judge, 

PIERRE N. LEVAL,

MYRNA PÉREZ,

Circuit Judges. 

_____________________________________ 

SHARNDEEP SINGH, 

 Petitioner, 

v. 21-6145 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Richard W. Chen, Esq., New York, NY. 
2 

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 

Attorney General; Nancy E. Friedman, Senior 

Litigation Counsel; Andrew Oliveira, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC. 

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED. 

Petitioner Sharndeep Singh, a native and citizen of India, seeks review of a 

February 11, 2021, decision of the BIA affirming a March 21, 2019, decision of an 

Immigration Judge (“IJ”) denying his application for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”). In re 

Sharndeep Singh, No. A208 927 626 (B.I.A. Feb. 11, 2021), aff’g No. A208 927 626

(Immig. Ct. N.Y. City Mar. 21, 2019). We assume the parties’ familiarity with the 

underlying facts and procedural history. 

We have reviewed the IJ’s decision as modified and supplemented by the 

BIA, i.e., without the alternative internal relocation finding that the BIA declined 

to reach, but including the BIA’s additional discussion of Singh’s CAT claim, and 
3 

all of the grounds for the IJ’s adverse credibility determination.1 See Hong Fei Gao 

v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing grounds not “explicitly 

discussed by the BIA,” but not rejected (quotation marks omitted)); Xue Hong Yang 

v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005) (reviewing IJ’s decision “as 

modified by the BIA’s decision”); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

2005) (reviewing IJ’s decision “as supplemented by the BIA”). We review the 

agency’s factual findings, including adverse credibility determinations, for 

substantial evidence, and we review questions of law and the application of fact 

to law de novo. Hong Fei Gao, 891 F.3d at 76. “[T]he administrative findings of fact 

are conclusive unless any reasonable adjudicator would be compelled to conclude 

to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

 Congress has specified how a credibility determination can be made: 

Considering the totality of the circumstances, and all relevant factors, 

a trier of fact may base a credibility determination on the demeanor, 

candor, or responsiveness of the applicant or witness . . . , the 

consistency between the applicant’s or witness’s written and oral 

statements . . . , the internal consistency of each such statement, [and] 

the consistency of such statements with other evidence of record . . . 

without regard to whether an inconsistency, inaccuracy, or falsehood 

goes to the heart of the applicant’s claim, or any other relevant factor. 

1 Singh’s challenges to the internal relocation finding are therefore misplaced. 
4 

8 U.S.C. § 1158(b)(1)(B)(iii). “’We defer . . . to an IJ’s credibility determination 

unless, from the totality of the circumstances, it is plain that no reasonable factfinder could make such an adverse credibility ruling.’” Hong Fei Gao, 891 F.3d at 

76 (quoting Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)). Substantial 

evidence supports the IJ’s finding that Singh was not credible as to his claim that 

he was threatened and beaten by members of opposing political parties in India 

because of his support for the Shiromani Akali Dal Mann Party (“Mann Party”). 

First, the IJ reasonably relied on Singh’s demeanor, noting that he was 

nonresponsive and evasive on cross-examination. See 8 U.S.C. § 1158(b)(1)(B)(iii). 

We generally defer to such findings because an IJ is “in the best position to 

evaluate whether apparent problems in the witness’s testimony suggest a lack of 

credibility or, rather, can be attributed to an innocent cause such as difficulty 

understanding the question.” Jin Chen v. U.S. Dep’t of Just., 426 F.3d 104, 113 (2d 

Cir. 2005). 

Second, the IJ reasonably relied on an inconsistency between Singh’s 

testimony and his neighbor’s affidavit as to whether the neighbor witnessed his 

assaults. See 8 U.S.C. § 1158(b)(1)(B)(iii). The neighbor affirmed that he witnessed 

Singh being threatened, and that he had learned from Singh’s family that Singh 
5 

was subsequently assaulted on two occasions. But Singh testified that the 

neighbor either witnessed both assaults or the threat and one assault. Singh’s 

explanation—that his neighbor recorded his account through an interpreter—did 

not compel the IJ to accept that explanation. See Majidi v. Gonzales, 430 F.3d 77, 

80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation 

for his inconsistent statements to secure relief; he must demonstrate that a 

reasonable fact-finder would be compelled to credit his testimony.” (citation and 

internal quotation marks omitted)). We have cautioned against giving undue 

weight to an applicant’s failure to explain omissions from a third-party statement 

where those omissions do not create an inconsistency with the applicant’s account. 

Hong Fei Gao, 891 F.3d at 81. But here, Singh’s neighbor’s statement contradicted 

Singh’s testimony about the basis for the neighbor’s knowledge of the assault. 

Third, the IJ reasonably relied on an inconsistency regarding the year Singh 

was assaulted. See 8 U.S.C. § 1158(b)(1)(B)(iii). Despite testifying that he left India 

in February 2016, Singh repeatedly testified on direct examination that he was 

assaulted and threatened in India in November and December 2016. Then, on 

cross-examination, he stated that he was harmed in 2015, which was consistent 

with his initial interview and application. The agency was not required to accept 
6 

Singh’s explanation that he misspoke because he was nervous. See Majidi, 430 F.3d 

at 80–81; see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as 

to which of competing inferences to draw are entirely within the province of the 

[IJ].” (alteration, citation and internal quotation marks omitted)). Although this 

discrepancy would not, in itself, provide substantial evidence for an adverse 

credibility determination, the agency properly considered the “cumulative effect” 

of this testimony with its other findings. Xiu Xia Lin, 534 F.3d at 167 (holding that 

“an IJ may rely on any inconsistency or omission in making an adverse credibility 

determination as long as the ‘totality of the circumstances’ establishes that an 

asylum applicant is not credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))). 

Fourth, the IJ reasonably relied on Singh’s omission from his original 

written statement of one of the two alleged assaults. See 8 U.S.C. 

§ 1158(b)(1)(B)(iii). In his original statement, Singh described an incident when 

armed supporters of rival parties surrounded him and threatened him and an 

incident when a group of rival party supporters beat him with sticks. In his 

supplemental statement, he added that rival party supporters also assaulted him 

between those two incidents. Singh gave shifting explanations for this omission. 

In his supplemental statement, he said that the contents of his original statement 
7 

were not read to him in a language he understood, and he was not aware that the 

incident had been omitted. But at his hearing, he said that he had been reluctant 

to reveal this assault—which differed from the subsequent assault because his 

assailants tore off clothes—to his brother, who either prepared the statement or 

arranged for someone to prepare it. The agency was not required to credit these 

contradictory explanations. See Majidi, 430 F.3d at 80. 

Finally, Singh argues that the agency overlooked or gave too little weight to 

country conditions evidence that confirmed the plausibility of his account. But 

“we presume that [the agency] has taken into account all of the evidence before 

[it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t 

of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006), and we do not require the agency to 

“expressly parse or refute on the record each individual argument or piece of 

evidence offered by the petitioner,” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d 

Cir. 2008) (citation and internal quotation marks omitted). The record does not 

compel the conclusion that the IJ ignored country conditions evidence, particularly 

as the IJ noted that this evidence was in the record and stated that all evidence had 

been considered, even if not explicitly discussed. 

Considered cumulatively, the demeanor and inconsistency findings provide 
8 

substantial evidence for the adverse credibility determination. See Likai Gao v. Barr, 

968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude 

an alien from showing that an IJ was compelled to find him credible. Multiple 

inconsistencies would so preclude even more forcefully.”); Xiu Xia Lin, 534 F.3d at 

167. Because Singh’s claims for asylum, withholding of removal, and CAT relief 

all rested on the same factual predicate, the adverse credibility determination was 

dispositive. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court