Singh v. Barr BIA Hom, IJ A205 421 884

18-372
Singh v. Barr
BIA
Hom, IJ
A205 421 884
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 22
nd
day of January, two thousand twenty. 4
5
PRESENT: 6
RICHARD C. WESLEY, 7
PETER W. HALL, 8
DENNY CHIN, 9
Circuit Judges. 10
_____________________________________ 11
12
AMANPREET SINGH, 13
14
Petitioner, 15
16
v. 18-372 17
NAC 18
WILLIAM P. BARR, UNITED STATES 19
ATTORNEY GENERAL, 20
21
Respondent. 22
_____________________________________ 23
24
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 25
New York, NY. 26
27
FOR RESPONDENT: Joseph H. Hunt, Assistant 28
Attorney General; Bernard A. 29
Joseph, Senior Litigation Counsel; 30
Jonathan K. Ross, Trial Attorney, 31

2

Office of Immigration Litigation, 1
United States Department of 2
Justice, Washington, DC. 3
4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7
is GRANTED. 8
Petitioner Amanpreet Singh, a native and citizen of 9
India, seeks review of a January 11, 2018, decision of the 10
BIA affirming an April 5, 2017, decision of an Immigration 11
Judge (“IJ”) denying his application for asylum, withholding 12
of removal, and relief under the Convention Against Torture 13
(“CAT”). In re Singh, No. A
205 421 884 (B.I.A. Jan. 11, 14
2018), aff’g No. A
205 421 884 (Immig. Ct. N.Y. City Apr. 5, 15
2017). We assume the parties’ familiarity with the 16
underlying facts and procedural history in this case. 17
We have reviewed the IJ’s decision as modified by the 18
BIA; i.e., minus the IJ’s finding that even assuming 19
credibility, Singh did not establish eligibility for asylum 20
and related relief. See Xue Hong Hang v. U.S. Dep’t of 21
Justice, 426 F.3d 520, 522 (2d Cir. 2005). The standards of 22
review are well established. See 8 U.S.C. § 1252(b)(4)(B); 23

3

Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) 1
(reviewing adverse credibility determination for substantial 2
evidence). “Considering the totality of the circumstances, 3
and all relevant factors, a trier of fact may base a 4
credibility determination on . . . the consistency between 5
the applicant’s . . . written and oral statements . . . , the 6
internal consistency of each such statement, [and] the 7
consistency of such statements with other evidence of record 8
. . . without regard to whether an inconsistency, inaccuracy, 9
or falsehood goes to the heart of the applicant’s claim . . 10
. .” 8 U.S.C. § 1158(b)(1)(B)(iii). We conclude that the 11
agency has not identified substantial evidence to support the 12
adverse credibility determination. 13
The agency based its adverse credibility determination 14
on two claimed inconsistencies. First, the agency identified 15
one inconsistency between Singh’s testimony that he was 16
treated with painkillers for his injuries and a medical report 17
that indicated that he received painkillers, antibiotics, and 18
intravenous fluids. Second, while Singh testified he 19
informed S. Narinder Singh, a leader of the political party 20
Singh belonged to, about the two attacks, the agency relied 21

4

on the fact that a letter from S. Narinder Singh did not 1
specifically mention his attacks by members of a rival party, 2
instead it only confirmed Singh’s party membership and that 3
Singh had been persecuted by a rival political party. We 4
have cautioned against putting excessive weight on a third-5
party’s omissions, particularly where, as here, the third 6
party’s statement does not contradict the applicant’s 7
statements. See Hong Fei Gao, 891 F.3d at 81 (“Although an 8
omission by a third party may form a basis for an adverse 9
credibility determination . . . under these circumstances—10
where a third party’s omission creates no inconsistency with 11
an applicant’s own statements—an applicant’s failure to 12
explain third-party omissions is less probative of 13
credibility than an applicant’s failure to explain his or her 14
own omissions.”). 15
Given the agency’s error in relying on this finding, we 16
conclude that remand is necessary because the single 17
inconsistency regarding Singh’s medical treatment does not, 18
under the totality of the circumstances, constitute 19
substantial evidence for an adverse credibility 20
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei 21

5

Gao, 891 F.3d at 76; cf. Xiu Xia Lin v. Mukasey, 534 F.3d 1
162, 167 (2d Cir. 2008) (“an IJ may rely on any inconsistency 2
or omission in making an adverse credibility determination as 3
long as the ‘totality of the circumstances’ establishes that 4
an asylum applicant is not credible.” (quoting 5
§ 1158(b)(1)(B)(iii))). Because the adverse credibility 6
determination was the sole basis for the agency’s denial of 7
Singh’s claim of past persecution, we remand for further 8
consideration of whether Singh met his burden of proof for 9
past persecution, such that he is entitled to a presumption 10
of future persecution. See 8 C.F.R. § 1208.13(b)(1). 11
For the foregoing reasons, the petition for review is 12
GRANTED, the BIA’s decision is VACATED, and the case is 13
REMANDED for further proceedings consistent with this 14
order. 15
FOR THE COURT: 16
Catherine O’Hagan Wolfe, 17
Clerk of Court 18