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- 6026 Singh v. Garland BIA Wright , IJ A 205 138 192 

### 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 4 t h da y of J a n u a r y , two thousand 3 twenty

- four

. 4 5 PRESENT: 6 DENNIS JACOBS, 7 PIERRE N. LEVAL, 8 JOSEPH F. BIANCO, 9 Circuit Judges. 10

_____________________________________ 11 12 JATINDER SINGH , 13 Petitioner , 14 15

v. 22

- 6026 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 22 FOR PETITIONER : Heena Arora, Esq., Richmond Hill, NY

. 232 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 1 Attorney General ; Anthony P. Nicastro , 2 Assistant Director; Dana M. Camilleri , Trial 3 Attorney, Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 8

DECREED that the petitio n for review is DENIED

. 9

Petitioner Jatinder Singh , a native and citizen of India , seeks review of a 10

December 13, 20 21 , decision of the BIA affirming a February 28, 2019 , decision of 11

an Immigration Judge (“IJ”) denying his application for asylum, withholding of 12

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

. In re Jatinder 13

Singh , No. A 205 138 192 (B. I.A. Dec. 13, 202 1 ), aff’g No. A 205 138 192 (Immig. Ct. 14

N.Y. City Feb. 28, 2019 ). We assume the parties’ familiarity with the underlying 15

facts and procedural history. 16

We have reviewed both the IJ’s and the BIA’s decisions. See Wangchuck v. 17

Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). We review factual findings 18

for substantial evidence, and we review questions of law and the application of 19

law to fact de novo. Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018). “[T]he 20

administrative findings of fact are conclusive unless any reasonable adjudicator 213 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B)

. 1

“The testimony of the applicant may be sufficient to sustain the applicant’s 2

burden without corroboration, but only if the applicant satisfies the trier of fact 3

that the applicant’s testimony is credible, is persuasive, and refers to specific facts 4

sufficient to demonstrate that the applicant is a refugee.” Id. § 1158(b)(1)(B)(ii). 5

Accordingly, “in some cases . . . an applicant may be generally credible but his 6

testimony may not be sufficient to carry the burden of persuading the fact finder 7

of the accuracy of his claim of crucial facts if he fails to put forth corroboration that 8

should be readily available.” W ei Sun v. Sessions , 883 F.3d 23, 28 (2d Cir. 2018) ; 9

see also Pinel

- Gomez v. Garland , 52 F.4th 523, 529

– 30 (2d Cir. 2022) (explaining that 10

the agency may find testimony credible but “still decide that the testimony falls 11

short of satisfying the applicant’s burden, either because it is unpersuasive or 12

because it does not include specific facts sufficient to demonstrate that the 13

applicant is a refugee” (quotation marks omitted)). “Where the trier of fact 14

determines that the applicant should provide evidence that corroborates 15

otherwise credible testimony, such evidence must be provided unless the 16

applicant does not have the evidence and cannot reasonably obtain the evidence.” 17

8 U.S.C. § 1158(b)(1)(B)(ii). 184 Thus, a lack of corroboration can be an independent basis for the denial of 1

relief if the agency identifies reasonably available evidence that should have been 2

presented. See id. ; Wei Sun , 883 F.3d at 27

– 29 . Before denying a claim solely on 3

an applicant’s failure to provide corroborating evidence, the IJ must, either in his 4

or her decision or otherwise in the record, “ (1) point to specific pieces of missing 5

evidence and show that it was reasonably available; (2) give the applicant an 6

opportunity to explain the omission; and (3) assess any explanation given. ” Wei 7

Sun , 883 F.3d at 31. Where the IJ has identified the missing evidence, we may 8

reverse the agency’s decision only if “a reasonable trier of fact is compelled to 9

conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4); 10

see Yan Juan Chen v. Holder , 658 F.3d 246, 253 (2d Cir. 2011). The agency did not 11

err in denying asylum and withholding of removal for lack of corroboration. 12

Singh testified that members of an opposing political party assaulted him 13

and threatened to kill him twice because of his religion and political opinion, that 14

the police threatened to charge him with a crime when he attempted to report the 15

first assault, and that his assailants came to his family’s house looking for him 16

after he left India. But his limited documentary evidence corroborated little of 17

that account: only that he was a Sikh and supporter of the Akali Dal Simranjit 185 Singh Mann Party (“Mann Party”), and that he was treated in a clinic for injuries 1

at the time of the second alleged assault. Notwithstanding Singh’s testimony 2

that one or both of his parents witnessed these aspects of his alleged persecution, 3

Singh offered no corroboration of the injuries resulting from the first beating and 4

their home treatment; of his unsuccessful effort, accompanied by his father, to 5

report that incident to the police; of the fact that the injuries treated at the clinic 6

were the result of a beating; of the statements of his assailants in his parents’ 7

presence attributing the beating they inflicted to his religion and political 8

affiliation; or of his assailants’ subsequent efforts to find him after he had left 9

India. 10

The agency did not err in requiring additional corroboration. Singh argues 11

that his credible testimony was sufficient to satisfy his burden on its own, and that 12

the agency overlooked or gave insufficient weight to his corroborating evidence. 13

However, “we presume that an IJ has taken into account all of the evidence before 14

him [or her], unless the record compellingly suggests otherwise.” Xiao Ji Chen v. 15

U.S. Dep’t of Just. , 471 F.3d 315, 336 n.17 (2d Cir. 2006). As outlined above, the 16

agency is entitled to require corroboration of even credible testimony, and Singh’s 17

documentary evidence failed to corroborate material aspects of his claim. The 186 burden is on the petitioner to introduce corroborating evidence “without 1

prompting from the IJ.” Wei Sun , 883 F.3d at 31 (quotation marks omitted). And 2

the record supports the IJ’s observation that some of Singh’s testimony was vague, 3

such that it was insufficiently persuasive without corroboration. For example, 4

Singh testified that he attended more rallies in the months preceding the second 5

assault, but he was not responsive when repeatedly asked to explain how 6

frequently he attended rallies before and after this increase. 7

Further, the agency identified specific missing evidence that could have 8

corroborated Singh’s testimony: statements from his mother (who is said to have 9

treated his injuries from the first assault and witnessed part of the second assault) 10

and father (who is said to have witnessed the police officer’s refusal to take his 11

report of the first assault, part of the second assault, and Singh’s medical treatment 12

at the clinic ). Singh was given an opportunity to explain the absence of such 13

statements at his hearing. And his explanations do not compel the conclusion 14

that he could not have obtained statements from his parents. See 8 U.S.C. 15

§ 1252(b)(4) . Singh testified that his father was hospitalized in the months 16

immediately preceding his February 2019 hearing, but he did not allege that his 17

mother was incapacitated, and he did not establish that he could not have obtained 187 a statement from his father before his hospitalization. Singh’s asylum application 1

had been pending since 2012, and he testified that his father had gathered his other 2

documentary evidence from India in about 2015, but that he had not thought to 3

ask his father to write a statement . And while Singh alleged that prior counsel 4

failed to instruct him to make such a request, he did not file a disciplinary 5

complaint or explain his failure to do so; and he had retained his new counsel by 6

September 2018 (months before his father’s alleged December 2018 7

hospitalization). See Matter of Lozada , 19 I. & N. Dec. 637, 639 (B.I.A. 1988) 8

(requiring party asserting ineffective assistance of counsel to (1) submit an 9

affidavit detailing the agreement with former counsel, (2) inform counsel of 10

allegations and give counsel an opportunity to respond, and (3) file a complaint 11

with an appropriate disciplinary authority, or explain why a complaint was not 12

filed); see also Garcia

- Martinez v. Dep’t of Homeland Sec. , 448 F.3d 511, 513 (2d Cir. 13

2006) (holding that an “applicant . . . who has failed to comply substantially with 14

the Lozada requirements . . . forfeits [ his] ineffective assistanc e of counsel claim in 15

this Court” (quotation marks omitted)). 16

The agency’s corroboration finding is bolstered by its observations about 17

other gaps in the record. As t he IJ noted, Singh provided a letter from the Mann 188 Party to confirm his role and character, and he testified that its author knew about 1

both attacks. When asked why the letter did not corroborate the attacks, he 2

offered no explanation for the omission. 1 And even Singh’s own written 3

statement, drafted a few days before his hearing with the benefit of new counsel’s 4

advice, failed to corroborate his testimony that his assailants came to his home 5

looking for him after he fled India. Singh’s explanation that he omitted this 6

information because he had not mentioned it during a prior interview was not 7

compelling, particularly as he conceded that he understood that this information 8

was important support for his claim that he feared return to India. 9

In sum, the agency did not err in finding that Singh failed to satisfy his 10

burden of proof for asylum because the record does not compel the conclusion that 11

evidence to corroborate his allegations of persecution was unavailable. See 12

8 U.S.C. § 1252(b)(4). That finding is also dispositive of withholding of removal 13

because both claims were based on the factual predicate. See Lecaj v. Holder, 616 14

F.3d 111, 119

– 20 (2d Cir. 2010). As to CAT relief, Singh’s argument that the IJ 15

1 Singh’s current argument here about the letter’s reliability is misplaced. The agency could only rely on the letter as evidence of matters it addressed; and Singh has not shown that a letter corroborating the assaults from the same author was unavailable , as he received one letter, the author knew about the assaults, and he could not give a reason why the author did not mention them.9 failed to separately consider his claim is belied by the record , and this argument 1

fails to engage with the BIA’s reasoning in affirming the denial of CAT protection. 2

See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005) (issues not 3

discussed in a petitioner’s brief are considered abandoned or waived). 4

Substantial evidence supports the agency’s conclusion that Singh failed to 5

demonstrate that he is “more likely than not to be tortured “by or at the instigation 6

of or with the consent or acquiescence of a public official or other person acting in 7

an official capacity,” as required for CAT protection. 8 C.F.R. §§ 1208.16(c)(2), 8

1208.18(a)(1); s ee Hui Lin Huang v. Holder , 677 F.3d 130, 134 (2d Cir. 2012) (“A 9

determination of what will occur in the future and the degree of likelihood of the 10

occurrence has been regularly regarded as fact

- finding

. . . .”). As discussed 11

above, Singh failed to establish that he suffered past harm, that he was threatened 12

with future harm, or that the police refused to protect him from such harm

. 13

Moreover , abuses inflicted by members of a political party are generally not 14

equivalent to abuses by a public official. See Singh v. Garland , 11 F.4th 106, 116 (2d 15

Cir. 2021) (finding that the agency was not “required to attribute an attack by 16

members of a regional party in Punjab to the national government of India” or to 17

“local authorities”); see also Lecaj , 616 F.3d at 119

– 20 (when petitioner fails to 1810 demonstrate likelihood of persecution required for grant of asylum, he 1

“necessarily fails” to demonstrate the likelihood of torture required for CAT 2

relief). 3

For the foregoing reasons, the petition for review is DENIED

. All pending 4

motions and applications are DENIED and stays VACATED. 5

FOR THE COURT: 6 Catherine O ’ Hagan Wolfe , 7 Clerk of Court 8