10-5103-ag
Singh v. Holder
                                                                                BIA
                                                                           Nelson, IJ
                                                                        A097 526 143
                   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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 20th day of April, two thousand twelve.

PRESENT:
         RALPH K. WINTER,
         REENA RAGGI,
         SUSAN L. CARNEY,
             Circuit Judges.
_______________________________________

SUKHWANT SINGH,
         Petitioner,

                  v.                                    10-5103-ag
                                                        NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Amy Nussbaum Gell, Gell & Gell, New
                               York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Holly M. Smith, Senior Litigation
                               Counsel; Claire L. Workman, Trial
                               Attorney,    Office   of   Immigration
                               Litigation, United States Department
                               of Justice, Washington, D.C.
      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 DISMISSED in part and DENIED in part.

      Sukhwant Singh, a native and citizen of India, seeks

review of a November 18, 2010, order of the BIA, affirming the

October 15, 2008 decision of Immigration Judge (“IJ”) Barbara

A.    Nelson,     which       denied       his    application           for     asylum,

withholding       of   removal,      and       relief      under    the   Convention

Against Torture (“CAT”).             See In re Sukhwant Singh, No. A097

526 143 (B.I.A. Nov. 18, 2010), aff’g No. A097 526 143 (Immig.

Ct.   N.Y.   City      Oct.    15,     2008).         We   assume       the   parties’

familiarity with the underlying facts and procedural history

in this case.

      Because Singh does not present a constitutional claim or

question     of    law    challenging           the     denial     of     his    asylum

application as untimely, we dismiss the petition as to the

denial of asylum.        See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(3);

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330–31

(2d Cir. 2006); Gui Yin Liu v. INS, 508 F.3d 716, 720–21 (2d

Cir. 2007). We review only the agency’s denial of withholding

of removal and CAT relief.



                                           2
      Under the circumstances of this case, we may review both

the   IJ’s    and        the    BIA’s        opinions        “for   the    sake       of

completeness.”          Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).       The    applicable         standards        of    review      are     well-

established.        See 8 U.S.C. § 1252(b)(4); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).                       For applications

like this one governed by the REAL ID Act of 2005, the agency

may consider the totality of the circumstance and base a

credibility        finding       on     an       applicant’s        demeanor,        the

plausibility       of    his    account,         and   inconsistencies          in   his

statements, without regard to whether they go “to the heart of

the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Bi

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

      In   this         case,    the     agency’s        adverse       credibility

determination           is     supported         by    substantial         evidence,

specifically,       identified         inconsistencies          between         Singh’s

testimony and asylum application as to the location and length

of his 1996 arrest and detention.                  See Xiu Xia Lin v. Mukasey,

534 F.3d at 167; Iouri v. Ashcroft, 487 F.3d 76, 81–82 (2d

Cir. 2007) (holding that discrepancies between applicant’s

asylum     application          and    testimony        may     support         adverse

credibility determination).                  Having thus questioned Singh’s


                                             3
credibility, the agency also reasonably relied on his failure

to provide any convincing corroboration that he had been

arrested, detained, beaten, and tortured in 1996.                      See Biao

Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                     Letters

from Singh’s village leader and family members contained

virtually identical phrases and spelling errors, making their

authenticity questionable and, thus, further impugning Singh’s

credibility.       See Mei Chai Ye v. U.S. Dep’t of Justice, 489

F.3d 517, 526 (2d Cir. 2007); Surinder Singh v. BIA, 438 F.3d

145, 148 (2d Cir. 2006).

       Moreover, as the agency found, Singh himself introduced

some    evidence      that   contradicted   his      allegations       of   past

torture. For example, a letter from Singh’s brother indicated

that Singh left India “to avoid being arrested,” but failed to

mention the alleged 1996 arrest, detention, and torture.                     See

Xiu Xia Lin, 534 F.3d at 166 n.3 (recognizing that “[a]n

inconsistency and an omission are, for [credibility] purposes,

functionally equivalent”).

       The    noted      inconsistencies      and     lack       of    evidence

corroborating      the    alleged   arrest,      detention,      and    torture

constitute     substantial      evidence    to      support   the      agency’s

adverse      credibility     determination.          See   id.    at    165-66.


                                     4
Because Singh’s withholding of removal claim and CAT claim

were    based   on   the   same   factual   predicates,   the   adverse

credibility determination is dispositive as to both. See Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (withholding of

removal); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 523 (2d Cir. 2005) (CAT).

       For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part.           As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and any pending motion

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk




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