Opinion
19-1425 NAC
03-15-2022
ARUNDEEP SINGH, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Deepti Vithal, Esq., Richmond Hill, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Patricia E. Bruckner, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of March, two thousand twenty-two.
FOR PETITIONER: Deepti Vithal, Esq., Richmond Hill, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Patricia E. Bruckner, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: ROSEMARY S. POOLER, ROBERT D. SACK, WILLIAM J. NARDINI, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Arundeep Singh, a native and citizen of India, seeks review of an April 22, 2019, decision of the BIA affirming an October 30, 2017, decision of an Immigration Judge ("IJ") denying asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In re Arundeep Singh, No. A 205 587 139 (B.I.A. Apr. 22, 2019), aff'g No. A 205 587 139 (Immig. Ct. N.Y. City Oct. 30, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as modified and supplemented by the BIA and address only the adverse credibility determination. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility determination for substantial evidence).
An IJ may, "[c]onsidering the totality of the circumstances" base a credibility finding on an asylum applicant's "demeanor, candor, or responsiveness," the plausibility of his account, and inconsistencies in his statements or between his statements and other evidence, "without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). "We defer. . . to an IJ's adverse credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the adverse credibility determination.
We defer to the IJ's determination that Singh's demeanor undermined his credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir. 2005) ("We give particular deference to credibility determinations that are based on the adjudicator's observation of the applicant's demeanor, in recognition of the fact that the IJ's ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question.").
Even if we were not required to defer to the IJ's demeanor findings, the record here amply supports the IJ's determination that Singh's testimony was vague. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) ("Where an applicant gives very spare testimony," the factfinder "may fairly wonder whether the testimony is fabricated"), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007. Singh was unable to provide details of what happened when he reported an attack to the police, the injuries he sustained, what medical treatment he received, and his political activities in the United States-even though he was offered multiple opportunities to do so both on direct and cross examination.
The agency also reasonably relied on inconsistencies between Singh's testimony and statements at his border interview. See 8 U.S.C. § 1158(b)(1)(B)(iii). He stated at the interview that the Congress Party was harassing him, but he testified that the Badal Party attacked him. He initially stated he was not harmed, but he testified that he was injured during both attacks. Further, Singh did not exhaust a challenge to the reliability of the border interview. See Lin Zhong v. U.S. Dept. of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007) ("[A] failure to exhaust is sufficient ground for the reviewing court to refuse to consider that issue."). The agency was not required to credit Singh's explanation that there were communication issues at the interview because he did not identify any issue during the interview and gave specific answers. See Majidi v. Gonzalez, 430 F.3d 77, 80 (2d Cir. 2005) (stating that the agency need not credit an applicant's explanations for inconsistent testimony unless "a reasonable fact-finder would be compelled to credit his testimony." (internal quotation marks omitted)).
Finally, the agency reasonably relied on Singh's failure to rehabilitate his credibility with reliable corroboration.
"An applicant's failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question." Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably gave limited weight to affidavits from Singh's parents, relatives, and neighbors in India because most of the authors did not witness his alleged attacks and none were available for cross examination, and the one eyewitness did not provide a detailed account. See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters from friends and family insufficient to support alien's claims because the authors were interested witnesses not subject to cross-examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). The IJ also reasonably declined to credit the other evidence: medical certificates were not contemporaneous records of treatment and were marked "not valid for medico legal purpose;" and the letter from a party leader appeared to be a form letter that was inconsistent with Singh's claim. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) ("We generally defer to the agency's evaluation of the weight to be afforded an applicant's documentary evidence.").
Given the demeanor finding, the vague testimony, the inconsistencies, and the lack of reliable corroboration, substantial evidence supports the adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief because all three claims are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED.