Singh v. Barr BIA Loprest, IJ A206 088 347

17-2977
Singh v. Barr
BIA
Loprest, IJ
A206 088 347
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 6
th
day of January, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
PETER W. HALL, 8
CHRISTOPHER F. DRONEY, 9
Circuit Judges. 10
_____________________________________ 11
12
JATINDER SINGH, 13
Petitioner, 14
v. 17-2977 15
NAC 16
WILLIAM P. BARR, UNITED STATES 17
ATTORNEY GENERAL, 18
Respondent. 19
_____________________________________ 20
21
FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, 22
P.C., Jackson Heights, NY. 23
24
FOR RESPONDENT: Joseph H. Hunt, Assistant 25
Attorney General; Leslie McKay, 26
Senior Litigation Counsel; 27
Christina P. Greer, Trial 28
Attorney, Office of Immigration 29
Litigation, United States 30
Department of Justice, Washington, 31
DC. 32

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 Jatinder Singh, a native and citizen of India, 5
seeks review of an August 24, 2017, decision of the BIA 6
affirming a December 1, 2016, decision of an Immigration Judge 7
(“IJ”) denying Singh’s application for asylum, withholding of 8
removal, and relief under the Convention Against Torture 9
(“CAT”). In re Jatinder Singh, No. A
206 088 347 (B.I.A. Aug. 10
24, 2017), aff’g No. A
206 088 347 (Immig. Ct. N.Y. City Dec. 11
1, 2016). We assume the parties’ familiarity with the 12
underlying facts and procedural history in this case. 13
Under the circumstances of this case, we have reviewed 14
the IJ’s decision minus the findings the BIA declined to rely 15
on. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 16
520, 522 (2d Cir. 2005). The applicable standards of review 17
are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 18
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing 19
adverse credibility determination under a substantial 20
evidence standard); Gjerjaj v. Holder, 691 F.3d 288, 292 (2d 21

3

Cir. 2012) (reviewing constitutional claims de novo). 1
Adverse Credibility Determination
2
The governing REAL ID Act credibility standard provides 3
as follows: 4
Considering the totality of the circumstances, and 5
all relevant factors, a trier of fact may base a 6
credibility determination on the demeanor, candor, 7
or responsiveness of the applicant or witness, . . 8
. the consistency between the applicant’s or 9
witness’s written and oral statements . . . , the 10
internal consistency of each such statement, the 11
consistency of such statements with other evidence 12
of record . . . , and any inaccuracies or falsehoods 13
in such statements, . . . or any other relevant 14
factor. 15
16
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 17
credibility determination unless . . . it is plain that no 18
reasonable fact-finder could make such an adverse credibility 19
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 20
2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial 21
evidence supports the agency’s determination that Singh’s 22
claim of persecution by the Congress Party on account of his 23
membership in the Akali Dal Mann political party was not 24
credible. 25
First, Singh has waived any challenge to the IJ’s 26
findings that his testimony was internally inconsistent and 27

4

inconsistent with his medical report regarding his injuries, 1
that there were discrepancies between his testimony and 2
application regarding who accompanied him to the police 3
station, and that his demeanor undermined his credibility. 4
See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) 5
(“Issues not sufficiently argued in the briefs are considered 6
waived and normally will not be addressed on appeal.”). 7
However, even if not waived, these findings provide 8
substantial support for the adverse credibility 9
determination. First, Singh’s testimony was internally 10
inconsistent and inconsistent with the medical certificate 11
regarding whether he sustained visible injuries. Second, 12
Singh’s application omits that a village council member and 13
his neighbor accompanied him to the police station. Third, 14
we defer to the IJ’s demeanor finding, which is supported by 15
Singh’s non-responsive answers on direct examination. See 16
Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 17
2005) (granting deference to credibility findings based on an 18
applicant’s demeanor, “in recognition of the fact that the 19
IJ’s ability to observe the witness’s demeanor places her in 20
the best position to evaluate whether apparent problems in 21

5

the witness’s testimony suggest a lack of credibility or, 1
rather, can be attributed to an innocent cause such as 2
difficulty understanding the question”); see also Tu Lin v. 3
Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness 4
is . . . one of the many outward signs a fact-finder may 5
consider in evaluating demeanor and in making an assessment 6
of credibility.”). 7
Additionally, the agency reasonably concluded that 8
Singh’s documentary evidence did not rehabilitate his 9
credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 10
(2d Cir. 2007) (“An applicant’s failure to corroborate his . 11
. . testimony may bear on credibility, because the absence of 12
corroboration in general makes an applicant unable to 13
rehabilitate testimony that has already been called into 14
question”). It was reasonable for the IJ to give diminished 15
weight to Singh’s 2016 medical certificate because it was not 16
prepared contemporaneously with his 2013 hospitalization but 17
rather to support his application. See Y.C. v. Holder, 741 18
F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the 19
agency’s evaluation of the weight to be afforded an 20
applicant’s documentary evidence”). The IJ also did not err 21

6

in giving diminished weight to affidavits from individuals 1
who were not subject to cross-examination. See Matter of H-2
L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving 3
diminished weight to letters from relatives because they were 4
from interested witnesses not subject to cross-examination), 5
rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 6
130 (2d Cir. 2012). Furthermore, as noted by the IJ, Singh 7
did not produce any country conditions evidence that Congress 8
Party members are targeting members of the Akali Dal Mann or 9
forcing them to join the Congress Party. 10
Given the discrepancies among Singh’s testimony, 11
application, and medical document, Singh’s demeanor, and lack 12
of reliable corroboration, substantial evidence supports the 13
adverse credibility determination. See 8 U.S.C. 14
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because 15
Singh’s claims were all based on the same factual predicate, 16
the adverse credibility determination is dispositive of 17
asylum, withholding of removal, and CAT relief. See Paul v. 18
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 19
Due Process Claim
20
Singh argues that his due process rights were violated 21

7

by the attorney for the Department of Homeland Security 1
(“DHS”) interrupting his testimony during direct examination. 2
“To establish a violation of due process, an alien must show 3
that []he was denied a full and fair opportunity to present 4
h[is] claims,” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 5
2007) (internal quotation marks and citations omitted), and 6
he must establish prejudice, Miller v. Mukasey, 539 F.3d 159, 7
164 (2d Cir. 2008). Singh has shown neither. He testified 8
at length at the hearing, and although the DHS attorney may 9
have interrupted the flow of his testimony, the interruptions 10
did not cause the non-responsive answers but instead 11
highlighted them for the IJ and put Singh on notice of 12
problems with his testimony. 13
For the foregoing reasons, the petition for review is 14
DENIED. 15
FOR THE COURT: 16
Catherine O’Hagan Wolfe, 17
Clerk of Court 18