14-2731

Kaur v. Sessions

BIA

Videla, IJ

A078 662 469

A079 596 140 

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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

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

23rd 4 day of October,two thousand seventeen.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 DEBRA ANN LIVINGSTON,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 RUPINDER KAUR, AKA SAROJ BALA, 

14 GURMINDER SINGH,

15 Petitioners,

16

17 v. 14-2731

18 NAC

19 JEFFERSON B. SESSIONS, III,

20 UNITED STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONERS: Amy Nussbaum Gell, Gell & Gell, New 

25 York, NY.

26

27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

28 Assistant Attorney General; Paul 

29 Fiorino, Senior Litigation Counsel; 

30 Judith R. O’Sullivan, Trial 

31 Attorney, Office of Immigration 

32 Litigation, United States 

33 Department of Justice, Washington, 

34 DC.
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED.

5 Petitioners Rupinder Kaur and Gurminder Singh, natives and 

6 citizens of India, seek review of a July 14, 2014, decision of 

7 the BIA affirming an April 18, 2013, decision of an Immigration 

8 Judge (“IJ”) denying Kaur’s and Singh’s applications for 

9 asylum, withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Rupinder Kauer, Gurminder 

11 Singh, Nos. A078 662 469/079 596 140 (B.I.A. July 14, 2014), 

12 aff’g Nos. A078 662 469/079 596 140 (Immig. Ct. N.Y. City Apr. 

13 18, 2013). We assume the parties’ familiarity with the 

14 underlying facts and procedural history in this case.

15 We have considered both the IJ’s and the BIA’s opinions “for 

16 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

17 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

18 standards of review are well established. See 8 U.S.C. 

19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 

20 Cir. 2009). 

21 Under the REAL ID Act of 2005, the agency may, in light of 

22 “the totality of the circumstances,” base an adverse 

23 credibility determination on asylum applicants’ “demeanor, 
3

1 candor, or responsiveness” and inconsistencies in their 

2 statements, “without regard to whether” those inconsistencies 

3 go “to the heart” of the applicants’ claim. 8 U.S.C. 

4 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 

5 (2d Cir. 2008). In conducting “substantial evidence” review, 

6 “we defer . . . to an IJ’s credibility determination unless, 

7 from the totality of the circumstances, it is plain that no 

8 reasonable fact-finder could make such an adverse credibility 

9 ruling.” Xiu Xia Lin, 534 F.3d at 167. 

10 The agency’s adverse credibility determination here is 

11 supported by substantial evidence. The record reflects 

12 numerous inconsistencies between Kaur’s original asylum 

13 application, Kaur and Singh’s statements to Government 

14 investigators after their son’s arrest, Singh and Kaur’s second 

15 asylum application, and the couple’s testimony at the hearing. 

16 We highlight several examples that amount to substantial 

17 evidence. See id. 

18 First, contrary to the argument in Kaur’s and Singh’s

19 brief, the agency did not overstate the significance of the 

20 inconsistencies between the first and second asylum 

21 applications. In the first application, Kaur alleged that 

22 Singh had been arrested and possibly killed for his political 

23 activities. As became clear in the second application, 
4

1 however, Singh was actually in the United States with Kaur when 

2 Kaur affirmed that he was under arrest, and possibly dead. That 

3 stark inconsistency alone is sufficient to support the adverse 

4 credibility determination. See Xian Tuan Ye v. Dep’t of 

5 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that 

6 a single inconsistency “concerning the nature of [the 

7 applicant’s] mistreatment . . . afforded substantial evidence 

8 to support the adverse credibility finding”).

9 The adverse credibility determination is further supported 

10 by additional inconsistencies and demeanor problems. The 

11 couple reported various dates of entry into the United States. 

12 Kaur’s first asylum application listed a 2000 arrival date and 

13 affirmed that Singh had been arrested in India; she subsequently 

14 told Government investigators that she arrived in 2000, after 

15 Singh; then, in their second asylum application, the couple said 

16 that they arrived together in 1999. They admitted Kaur

17 initially listed a false date of entry to meet the one-year 

18 deadline for asylum. Singh admitted that he knew about the 

19 false date. He also admitted that he lied to an immigration 

20 official at the U.S. consulate in 1999 to obtain a travel visa

21 to the United States. 

22 Kaur and Singh also failed to disclose that Singh had been 

23 arrested in 2008 for assault. When cross-examined about this 
5

1 omission from their applications, Singh explained that his 

2 attorney asked him all the questions on the application except 

3 the one about prior arrests. The IJ reasonably found this 

4 explanation implausible. Majidi v. Gonzales, 430 F.3d 77, 80 

5 (2d Cir. 2005) (explaining that the agency is not required to 

6 credit an explanation that is merely plausible or possible).

7 The IJ also expressed doubts about the couple’s demeanor 

8 during the merits hearing, noting on the record that Singh 

9 appeared to be coaching Kaur while she testified. “[T]he IJ 

10 has the unique advantage among all officials involved in the 

11 process of having heard directly from the applicant,” and so 

12 that finding deserves deference. See Zhou Yun Zhang v. U.S. 

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

14 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 

15 (2d Cir. 2007). 

16 Given Kaur and Singh’s numerous false statements to 

17 immigration officials, inconsistent testimony, and demeanor 

18 problems, the totality of the circumstances supports the 

19 agency’s adverse credibility determination. 8 U.S.C. 

20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165. This 

21 determination infects the entirety of their claim to relief, 

22 calling into question both the allegations of past harm and 

23 their political activity. Siewe v. Gonzales, 480 F.3d 160, 170 
6

1 (2d Cir. 2007) (“So a single false document or a single instance 

2 of false testimony may (if attributable to the petitioner) 

3 infect the balance of the alien’s uncorroborated or

4 unauthenticated evidence.”). Because their asylum, 

5 withholding of removal, and CAT claims were all based on the 

6 same factual predicate, the credibility determination is 

7 dispositive. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d 

8 Cir. 2006). For this reason, we do not reach the agency’s 

9 time-bar denial of asylum. See INS v. Bagamasbad, 429 U.S. 24, 

10 25 (1976) (“As a general rule courts and agencies are not 

11 required to make findings on issues the decision of which is 

12 unnecessary to the results they reach.”). 

13 For the foregoing reasons, the petition for review is 

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

15 that the Court previously granted in this petition is VACATED, 

16 and any pending motion for a stay of removal in this petition 

17 is DISMISSED as moot. Any pending request for oral argument 

18 in this petition is DENIED in accordance with Federal Rule of 

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

20 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk