Singh v. Barr BIA Criss, IJ A208 179 455

18-2061
Singh v. Barr
BIA
Criss, IJ
A208 179 455

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
14
th
day of April, two thousand twenty. 4
5
PRESENT: 6
JOSÉ A. CABRANES, 7
GERARD E. LYNCH, 8
MICHAEL H. PARK, 9
Circuit Judges. 10
_____________________________________ 11
12
LOVEJED SINGH, 13
Petitioner, 14
15
v. 18- 2061 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Deepti Vithal, Esq., Richmond Hill, 23
NY. 24
25
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26
General; Kiley Kane, Senior 27

2

Litigation Counsel; Judith R. 1
O’Sullivan, Trial Attorney, Office 2
of Immigration Litigation, United 3
States Department of Justice, 4
Washington, DC. 5
UPON DUE CONSIDERATION of this petition for review of a Board 6
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 7
ADJUDGED, AND DECREED that the petition for review is DISMISSED 8
in part and DENIED in part. 9
Petitioner Lovejed Singh, a native and citizen of India, 10
seeks review of a June 29, 2018, decision of the BIA affirming 11
a July 28, 2017, decision of an Immigration Judge (“IJ”) denying 12
Singh’s application for asylum, withholding of removal, and 13
relief under the Convention Against Torture (“CAT”). In re 14
Lovejed Singh, No. A 208 179 455 (B.I.A. Jun. 29, 2018), aff’g 15
No. A 208 179 455 (Immig. Ct. N.Y. City Jul. 28, 2017). We assume 16
the parties’ familiarity with the underlying facts and 17
procedural history in this case. 18
Under the circumstances of this case, we have reviewed the 19
IJ’s decision as modified by the BIA, that is, minus the findings 20
the BIA declined to rely on. See Xue Hong Yang v. U.S. Dep’t 21
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly, we 22
only address the agency’s finding of the asylum claim as untimely 23
and the adverse credibility determination. 24

3

I. Asylum: One- Year Filing Deadline 1
An alien is ineligible for asylum “unless the alien 2
demonstrates by clear and convincing evidence that the 3
application has been filed within 1 year after the date of the 4
alien’s arrival in the United States.” 8 U.S.C. 5
§ 1158(a)(2)(B). An application may be considered outside the 6
one- year deadline “if the alien demonstrates . . . the existence 7
of changed circumstances which materially affect the applicant’s 8
eligibility for asylum or extraordinary circumstances relating 9
to the delay,” id. § 1158(a)(2)(D), and the application is filed 10
“within a reasonable period given those circumstances,” 8 C.F.R. 11
§ 1208.4(a)(4)(ii), (a)(5). 12
Our jurisdiction to review the agency’s findings regarding 13
the timeliness of an asylum application and the circumstances 14
excusing the untimeliness is limited to constitutional claims 15
or questions of law. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). 16
When assessing jurisdiction, we “study the arguments asserted 17
. . . to determine, regardless of the rhetoric employed in the 18
petition, whether it merely quarrels over the correctness of 19
the factual findings or justification for the discretionary 20
choices, in which case the court would lack jurisdiction or 21

4

whether it instead raises a ‘constitutional claim’ or ‘question 1
of law,’ in which case the court could exercise jurisdiction 2
to review those particular issues.” Xiao Ji Chen v. U.S. Dep’t 3
of Justice, 471 F.3d 315, 329 (2d Cir. 2006). For jurisdiction 4
to attach, such claims must be colorable. Barco-Sandoval v. 5
Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008). We review 6
constitutional claims and questions of law de novo. Pierre v. 7
Holder, 588 F.3d 767, 772 (2d Cir. 2009). 8
Singh concedes that his application was untimely, but he 9
argues that his mental health issues excused his untimely filing. 10
Specifically, he states that the agency ignored the 11
psychological evaluation in the record that supports his claim 12
that his memory issues impacted his filing. The IJ and BIA, 13
however, both explicitly referenced the evaluation when finding 14
that there was insufficient evidence that Singh’s mental health 15
issues prevented timely filing. Singh, then, “merely quarrels 16
over the correctness of the factual findings or justification 17
for the discretionary choices,” which we do not have jurisdiction 18
to review. Xiao Ji Chen, 471 F.3d at 329. Accordingly, we 19
dismiss the petition as to asylum. Moreover, as discussed below 20

5

the agency’s alternative adverse credibility determination is 1
supported by substantial evidence. 2
II. Adverse Credibility 3
We review the agency’s adverse credibility determination 4
under a substantial evidence standard. See 8 U.S.C. 5
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 6
Cir. 2018). “Considering the totality of the circumstances, and 7
all relevant factors, a trier of fact may base a credibility 8
determination on the demeanor, candor, or responsiveness of the 9
applicant . . . , the consistency between the applicant’s . . 10
. written and oral statements . . . , the internal consistency 11
of each such statement, [and] the consistency of such statements 12
with other evidence of record . . . without regard to whether 13
an inconsistency, inaccuracy, or falsehood goes to the heart 14
of the applicant’s claim . . . .” 8 U.S.C. 15
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 16
determination unless, from the totality of the circumstances, 17
it is plain that no reasonable fact-finder could make such an 18
adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 19
162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. 20

6

The adverse credibility determination is supported by 1
substantial evidence. 2
Singh alleged that he joined the Simranjit Singh Mann Party 3
in January 2015, and members of an opposition party beat him 4
once in February 2015 and threatened him twice. As the agency 5
found, Singh’s statements that he did not report his beating 6
or threats to the police were inconsistent with a letter he 7
submitted, in which his neighbor alleged that he was with Singh 8
whenever he made reports to the police. Singh did not have a 9
compelling explanation for the discrepancy, stating only that 10
he did not prepare his neighbor’s letter. See Majidi v. 11
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 12
do more than offer a plausible explanation for his inconsistent 13
statements to secure relief; he must demonstrate that a 14
reasonable fact-finder would be compelled to credit his 15
testimony.” (internal quotation marks omitted)). 16
Further, the agency’s demeanor finding bolsters the adverse 17
credibility determination. “We give particular deference to 18
credibility determinations that are based on the adjudicator’s 19
observation of the applicant’s demeanor, in recognition of the 20
fact that the IJ’s ability to observe the witness’s demeanor 21

7

places h[im] in the best position to evaluate whether apparent 1
problems in the witness’s testimony suggest a lack of credibility 2
or, rather, can be attributed to an innocent cause such as 3
difficulty understanding the question.” Jin Chen v. U.S. Dep’t 4
of Justice, 426 F.3d 104, 113 (2d Cir. 2005). The record also 5
supports the IJ’s conclusion that Singh’s testimony lacked 6
detail: Singh gave vague answers about what his party did or 7
what its agenda was, stating that he joined because the party 8
was “excellent” and that it wanted to keep people off drugs and 9
did “excellent work,” and Singh’s allegation that that he would 10
be killed because of his party membership was not supported by 11
any examples or details other than his own single beating. 12
Because of the inconsistency and the demeanor finding, the 13
IJ reasonably determined that Singh’s credibility was in 14
question. See 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ also 15
properly relied on Singh’s failure to rehabilitate his testimony 16
with reliable objective corroboration of his injuries and 17
medical treatment, as the letter Singh submitted from his doctor 18
was unauthenticated, vague, and not contemporaneous with his 19
treatment. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 20
2007) (“An applicant’s failure to corroborate his or her 21

8

testimony may bear on credibility, because the absence of 1
corroboration in general makes an applicant unable to 2
rehabilitate testimony that has already been called into 3
question.”); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 4
2013) (“We generally defer to the agency’s evaluation of the 5
weight to be afforded an applicant’s documentary evidence.”); 6
see also In re H-L-H- & Z- Y-Z-, 25 I. & N. Dec. 209, 214 n.5, 7
215 (BIA 2010) (finding that letters from friends and family 8
were insufficient to provide substantial support for claims 9
because they were from interested witnesses not subject to 10
cross-examination and noting that the “failure to attempt to 11
prove the authenticity of a document through [8 C.F.R. § 1287.6] 12
or any other means is significant”), overruled on other grounds 13
by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). 14
Given the inconsistency between Singh’s testimony and his 15
neighbor’s, which relates to Singh’s only allegation of past 16
harm, the deference due to the IJ’s demeanor finding, and the 17
lack of reliable objective corroboration, the agency’s adverse 18
credibility determination is supported by substantial evidence. 19
See Xiu Xia Lin, 534 F.3d at 167. That determination is 20
dispositive of asylum, withholding of removal, and CAT relief 21

9

because all three claims are based on the same factual predicate. 1
See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 2
For the foregoing reasons, the petition for review is 3
DISMISSED in part and DENIED in remaining part. 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