15-2419 Singh v. Sessions BIA Christensen, IJ A201 292 537 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **21 st**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **KARNAIL SINGH,** 13 Petitioner **,** 14 15 **v. 15-2419** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jaspreet Singh, Jackson Heights, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; John S. 26 Hogan, Assistant Director; Andrea N. 27 Gevas, Trial Attorney, Office of 28 Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 31 322 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 is 3

DENIED. 4 Petitioner Karnail Singh, a native and citizen of India, 5 seeks review of a July 2, 2015, decision of the BIA affirming 6 a February 24, 2014, decision of an Immigration Judge (“IJ”) 7 denying Singh’s application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Karnail Singh, No. A201 292 537 (B.I.A. July 2, 2015), aff’g 10

No. A201 292 537 (Immig. Ct. N.Y. City Feb. 24, 2014). We assume 11 the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13

We have considered both the IJ’s and the BIA’s opinions “for 14 the sake of completeness.” Wangchuck v. Dep’t of Homeland 15

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 16 standards of review are well established. See 8 U.S.C. 17 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d 18 Cir. 2009). 19 Under the REAL ID Act of 2005, the agency may, in light of 20 “the totality of the cir cumstances,” base an adverse 21 credibility determination on an asylum applicant’s “demeanor, 22 candor, or responsiveness,” the plausibility of his account, 233 and inconsistencies in his statements. 8 U.S.C. 1

§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey , 534 F.3d 162, 2 165 (2d Cir. 2008)(per curiam). In conducting “substantial 3 evidence” review, “we defer . . . to an IJ’s credibility 4 determination unless, from the totality of the circumstances, 5 it is plain that no reasonable fact-finder could make such an 6 adverse credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 7 The adverse credibility determination against Singh rests 8 on substantial evidence. Singh’s testimony diverged from his 9 asylum application in material ways. He testified that he was 10 beaten four times, but his application identified three 11 beatings. Singh later testified that he was beaten only three 12 times, and explained that the first incident he had alluded to, 13 in August 2010, involved threats, not physical abuse, and hence 14 he did not include it on his asylum application. A reasonable 15 adjudicator would not be compelled to credit this explanation; 16 as the IJ noted, the first occurrence purportedly marked the 17 start of his mistreatment at the hands of the Congress Party. 18 See Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). 19 Singh’s testimony about his January 12, 2011 beating was 20 fraught with confusion. He variously testified that he went 21 to the hospital straight after he had been beaten up, he took 22 medication from the hospital before he went to the police 234 station, he took homemade medication before he went to the 1 police station, and he was arrested and taken to the police 2 station before he went to the hospital. Similarly, he 3 variously testified that he was never arrested, he was arrested 4 and beaten with sticks at the police station, and the Congress 5 Party beat him with sticks. He testified that he went to the 6 police station to give a report, but the police did not listen 7 to him, but moments later testified that after the Congress 8 Party made a complaint against him, the police arrested him. 9 Finally, his asylum application stated that after the January 10 12, 2011 incident with Congress Party members, he was held 11 overnight. However, he variously testified that he was at the 12 police station for two to three hours, he was held for four hours 13 in the evening and released the next day, and he was assaulted 14 by Congress Party members in the morning and arrested 15

afterwards. 16 These inconsistencies amply support the adverse 17 credibility determination. Xiu Xia Lin , 534 F.3d at 167. In 18 his petition for review, Singh explains that he felt intimidated 19 on cross-examination. The agency was not compelled to accept 20 that explanation. Majidi , 430 F.3d at 80. Moreover, as the 21 BIA noted, several of the inconsistencies outlined above arose 22 during direct examination by Singh’s own attorney. 235 Singh challenges the agency’s decision to give diminished 1 weight to his documentary evidence. “We defer to the agency’s 2 determination of the weight afforded to an alien’s documentary 3 evidence.” Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 2013). 4 The reason given here--the authors were unavailable for 5 cross-examination--was a proper basis for the exercise of the 6 agency’s discretion, particularly in light of the adverse 7 credibility determination. Siewe v. Gonzales , 480 F.3d 160, 8 170 (2d Cir. 2007) (“[A] single false document or a single 9 instance of false testimony may (if attributable to the 10 petitioner) infect the balance of the alien’s uncorroborated 11 or unauthenticated evidence.”). 12 Singh argues that the agency had to analyze his CAT claim 13 separately, and cites background evidence of prisoner suicides 14 while in Indian police custody as warranting CAT relief. If 15 a CAT claim is based on the same facts that the agency found 16 not credible in analyzing the asylum claim, that credibility 17 determination is dispositive. See Xue Hong Yang v. U.S. Dep’t 18 of Justice , 426 F.3d 520, 523 (2d Cir. 2005); Paul v. Gonzales , 19 444 F.3d 148, 156-57 (2d Cir. 2006). That rule applies here: 20 Singh claims he will be tortured based on his past incidents 21 with the Congress Party and police, but the agency discredited 22 his testimony that those incidents ever occurred. That 236 credibility determination was fatal to his CAT claim. 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our rev iew, any stay of removal 3 that the Court previously granted in this petition is VACATED, 4 and any pending motion for a stay of removal in this petition 5 is DENIED as moot. Any pending request for oral argument in 6 this petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 8 34.1(b). 9

FOR THE COURT: 10 Catherine O = Hagan Wolfe, Clerk 11