18-1720 Singh v. Barr BIA Lurye, IJ A200 815 954 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 23 rd**  **day of December, two thousand nineteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **RAYMOND J. LOHIER, JR.,** 8 **JOSEPH F. BIANCO,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HARMEET SINGH,** 13 Petitioner **,** 14 15 **v. 18-1720** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jaspreet Singh, Jackson Heights, 23 NY. 24 25 **FOR RESPONDENT:** Joseph H. Hunt, Assistant 26 Attorney General; Jeffrey R. 27 Leist, Senior Litigation Counsel; 28 Kathleen Kelly Volkert, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 3 is DENIED. 4 Petitioner Harmeet Singh, a native and citizen of India, 5 seeks review of a May 11, 2018, decision of the BIA affirming 6 a June 28, 2017, decision of an Immigration Judge (“IJ”) 7 denying his application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Harmeet Singh , No. A200 815 954 (B.I.A. May 11, 2018), 10 aff’g No. A200 815 954 (Immig. Ct. N.Y. City June 28, 2017). 11 We assume the parties’ familiarity with the underlying facts 12 and procedural history. 13 Under the circumstances, we have considered both the IJ’s 14 and the BIA’s opinions “for the sake of completeness.” 15 Wangchuck v. Dep’t of Homeland Security , 448 F.3d 524, 528 16 (2d Cir. 2006). The applicable standards of review are well 17 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 18 Sessions , 891 F.3d 67, 76 (2d Cir. 2018). 19 “Considering the totality of the circumstances, and all 20 relevant factors, a trier of fact may base a credibility 21 determination on . . . the consistency between the 22 applicant’s or witness’s written and oral statements . . . , 233 the internal consistency of e ach such statement, the 1 consistency of such statements with other evidence of 2 record . . . without regard to whether an inconsistency, 3 inaccuracy, or falsehood goes to the heart of the applicant’s 4 claim, or any other relevant factor.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 6 163–64 (2d Cir. 2008). Substantial evidence supports the 7 agency’s determination that Singh was not credible as to his 8 claim that police and members of the Akali Dal Badal party 9 beat him twice in India on account of his membership in the 10 Akali Dal Mann party. 11 The adverse credibility determination was based on 12 inconsistent statements from Singh’s credible fear interview, 13 asylum application, hearing testimony, and supporting 14

letters. See 8 U.S.C. § 1158(b)(1)(B)(iii). As an initial 15 matter, the agency did not err in relying on the record of 16 Singh’s credible fear interview because the record of the 17 interview was sufficiently reliable: the interview was 18 conducted with an interpreter, it was memorialized in a 19 typewritten question-and-answer format, the questions posed 20 were designed to elicit details of Singh’s asylum claim, and 21 Singh’s responses indicated that he understood the questions. 22 See Ming Zhang v. Holder , 585 F.3d 715, 724-25 (2d Cir. 2009) 234 (requiring close scrutiny of credible fear interviews but 1 finding a record reliable when it is typewritten, 2 demonstrates that the applicant understood the questions, 3 reflects questions about past harm or fear of future harm, 4 and is conducted with an interpreter). 5 The agency reasonably found that Singh provided different 6 birthdates to an asylum officer during his credible fear 7 interview and police in Michigan during an arrest than he 8 provided in his removal proceedings. See 8 U.S.C. 9 § 1158(b)(1)(B)(iii). Singh was unable to explain the 10 inconsistencies; rather, he further impugned his credibility 11 by stating that he had not known his correct birthdate during 12 his credible fear interview, despite the fact that the 13 interviewer transcribed the purportedly correct birthdate and 14 would have had no basis to know that date if Singh had not 15 provided it. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 16 Cir. 2005) (“A petitioner must do more than offer a plausible 17 explanation for his inconsistent statements to secure relief; 18 he must demonstrate that a reasonable fact-finder would be 19 compelled to credit his testimony.” (internal quotation marks 20 omitted)). 21 The agency also reasonably relied on Singh’s inconsistent 22 descriptions of his second attack as to whether his attackers 235 chased after him. See 8 U.S.C. § 1158(b)(1)(B)(iii). When 1 asked to explain the inconsistency, Singh repeatedly changed 2 his testimony, creating new inconsistencies that supported 3 finding him not credible. See id. ; see also Majidi , 430 F.3d 4

at 80. 5 Having questioned Singh’s credibility, the agency 6 reasonably relied further on his failure to rehabilitate his 7 testimony with reliable corroborating evidence. “An 8 applicant’s failure to corroborate his or her testimony may 9 bear on credibility, because the absence of corroboration in 10 general makes an applicant unable to rehabilitate testimony 11 that has already been called into question.” Biao Yang v. 12

Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). The agency did 13 not err in declining to credit affidavits from Singh’s parents 14 and neighbor or unsworn doctors’ notes because some of the 15 authors were interested witnesses and none were available for 16 cross-examination. See Y.C. v. Holder , 741 F.3d 324, 332 (2d 17 Cir. 2013) (“We generally defer to the agency’s evaluation of 18 the weight to be afforded an applicant’s documentary 19 evidence.”); see also In re H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 20 209, 215 (B.I.A. 2010) (finding that letters from alien’s 21 friends and family were insufficient to provide “substantial 22 support” for alien’s claims because they were from interested 236 witnesses not subject to cross-examination), overruled on 1 other grounds by Hui Lin Huang v. Holder , 677 F.3d 130, 133– 2 38 (2d Cir. 2012). 3 Given the inconsistency and corroboration findings, the 4 agency’s adverse credibility determination is supported by 5 substantial evidence.* See 8 U.S.C. § 1158(b)(1)(B)(iii). 6 That credibility determination was dispositive of asylum, 7 withholding of removal, and CAT relief because all three 8 claims were based on the same factual predicate. See Paul 9

v. Gonzales , 444 F.3d 148, 156–57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. All pending motions and applications are DENIED and 12 stays VACATED. 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 16

* The IJ erred by failing to provide Singh an oppor tunity to explain additional inconsistencies identified in the record. See Ming Shi Xue v. B.I.A. , 439 F.3d 111, 125 (2d Cir. 2006). Nevertheless, remand would be futile because Si ngh’s inconsistent statements regarding his birthdate and alleged sec ond attack as well as hi s changing stories when asked to explain those inconsistencies were more than sufficient to support the agency’s adverse credibility determination. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand is futile when this Court can “confidently predict” that the agency would reach the same decision absent the errors); see also Xiu Xia Lin , 534 F.3d at 165–67.