Singh v. Barr BIA Poczter, IJ A206 443 520

18-249
Singh v. Barr
BIA
Poczter, IJ
A206 443 520
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 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 19
th
day of February, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
JOSÉ A. CABRANES, 8
JOSEPH F. BIANCO, 9
Circuit Judges. 10
_____________________________________ 11
12
GULZAR SINGH, 13
Petitioner, 14
15
v. 18-249 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 23
New York, NY. 24
25
FOR RESPONDENT: Joseph H. Hunt, Assistant 26
Attorney General; Jessica A. 27
Dawgert, Senior Litigation 28
Counsel; Jacob A. Bashyrov, Trial 29
Attorney, Office of Immigration 30
Litigation, United States 31
Department of Justice, Washington, 32
DC. 33

2

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 Gulzar Singh, a native and citizen of India, 5
seeks review of a December 28, 2017, decision of the BIA 6
affirming a February 16, 2017, decision of an Immigration 7
Judge (“IJ”) denying his application for asylum, withholding 8
of removal, and relief under the Convention Against Torture 9
(“CAT”). In re Gulzar Singh, No. A206 443 520 (B.I.A. Dec. 10
28, 2017), aff’g No. A206 443 520 (Immig. Ct. N.Y. City Feb. 11
16, 2017). We assume the parties’ familiarity with the 12
underlying facts 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

3

applicant’s or witness’s written and oral statements . . . , 1
the internal consistency of each such statement, the 2
consistency of such statements with other evidence of 3
record . . . without regard to whether an inconsistency, 4
inaccuracy, or falsehood goes to the heart of the applicant’s 5
claim, or any other relevant factor.” 8 U.S.C. 6
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 7
determination unless, from the totality of the circumstances, 8
it is plain that no reasonable fact-finder could make such an 9
adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 10
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d 11
at 76. Substantial evidence supports the agency’s 12
determination that Singh was not credible as to his claim 13
that members of the Akali Dal Badal attacked him twice in 14
India on account of his membership in a rival political party, 15
the Shiromani Akali Dal Amritsar (“SADA”). 16
The agency reasonably relied on inconsistent evidence 17
regarding whether Singh’s parents are also affiliated with 18
the SADA Party, and what medicine Singh was given after one 19
of the alleged attacks. See 8 U.S.C. § 1158(b)(1)(B)(iii). 20
Singh did not compellingly explain these inconsistencies. 21
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 22

4

petitioner must do more than offer a plausible explanation 1
for his inconsistent statements to secure relief; he must 2
demonstrate that a reasonable fact-finder would be compelled 3
to credit his testimony.” (internal quotation marks 4
omitted)). 5
The agency also reasonably found Singh’s credibility 6
impugned by his submission of affidavits allegedly prepared 7
by two friends that contained strikingly similar language, 8
including grammatically incorrect phrases. See Mei Chai Ye 9
v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007) 10
(“[T]his court has . . . firmly embraced the commonsensical 11
notion that striking similarities between affidavits are an 12
indication that the statements are canned.” (internal 13
quotation marks omitted)); Singh v. BIA, 438 F.3d 145, 148 14
(2d Cir. 2006) (holding that “nearly identical language” in 15
affidavits supported adverse credibility determination). 16
Singh did not compellingly explain the similarities. See 17
Majidi, 430 F.3d at 80. 18
Having questioned Singh’s credibility, the agency 19
reasonably relied further on his failure to rehabilitate his 20
testimony with reliable corroborating evidence. “An 21
applicant’s failure to corroborate his or her testimony may 22

5

bear on credibility, because the absence of corroboration in 1
general makes an applicant unable to rehabilitate testimony 2
that has already been called into question.” Biao Yang v. 3
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As discussed 4
above, certain of Singh’s corroborating affidavits contained 5
questionably identical language and his medical evidence was 6
inconsistent with his testimony. Further, the agency 7
reasonably noted that Singh failed to submit an affidavit 8
from his father who purportedly took him to the hospital after 9
one alleged attack, or an affidavit or testimony from his 10
brother who is also a SADA member and lives with Singh in the 11
United States. 12
Given the inconsistency, identical affidavits, and 13
corroboration findings, the adverse credibility determination 14
is supported by substantial evidence. See Xiu Xia Lin, 534 15
F.3d at 165–66. The agency’s adverse credibility 16
determination is dispositive of asylum, withholding of 17
removal, and CAT relief because all three claims are based on 18
the same factual predicate. See Paul v. Gonzales, 444 F.3d 19
148, 156–57 (2d Cir. 2006). 20
As the Government argues, Singh does not challenge the 21
agency’s denial of a continuance with any specificity and 22

6

thus we need not consider it. See Yueqing Zhang v. Gonzales, 1
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). Nevertheless, 2
we note that there is no merit to Singh’s argument that the 3
IJ’s denial of a continuance violated due process when Singh 4
had more than one year to gather and submit evidence and he 5
has never described his brother’s intended testimony or 6
explained how it would overcome the adverse credibility 7
determination. See Burger v. Gonzales, 498 F.3d 131, 134 (2d 8
Cir. 2007) (“To establish a violation of due process, an alien 9
must show that []he was denied a full and fair opportunity to 10
present h[is] claims or that [he was] otherwise deprived . . 11
. of fundamental fairness.” (internal quotation marks 12
omitted)); Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d 13
Cir. 2008) (“Parties claiming denial of due process in 14
immigration cases must, in order to prevail, allege some 15
cognizable prejudice fairly attributable to the challenged 16
process.” (internal quotation marks omitted)). 17
For the foregoing reasons, the petition for review is 18
DENIED. All pending motions and applications are DENIED and 19
stays VACATED. 20
FOR THE COURT: 21
Catherine O’Hagan Wolfe, 22
Clerk of Court 23