                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3720




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3720
                                   ________________

                                 BALWINDER SINGH,
                                                               Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                           On Review of a Decision of the
                           Board of Immigration Appeals
                             (Agency No. A73 646 146)
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 12, 2005

            Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES

                                  (Filed April 6, 2006)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Balwinder Singh, a citizen of India, petitions for review of a final order of the

Board of Immigration Appeals (BIA). We will deny the petition for review.
                                             I.

       Singh entered the United States in 1993 with a phony passport; the next year, he

filed an application for asylum. The Government took no action on the application. In

2002, however, the Government initiated removal proceedings against Singh, and he filed

an updated application for asylum, withholding of removal, and protection under the

Convention Against Torture. At a hearing, the immigration judge (IJ) was not persuaded

by Singh’s story that he was persecuted by Indian police because of his activities in

support of Sikh separatism. The Board of Immigration Appeals (BIA) affirmed on the

basis of the IJ’s adverse credibility determination. Singh timely petitioned for review.

                                             II.

       Because the BIA did not provide any independent analysis, we review the decision

of the IJ as if it were the BIA’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d

Cir. 2001). Our standard of review is narrow. We must sustain the IJ’s removal order if

there is substantial evidence in the record to support it. Abdille v. Ashcroft, 242 F.3d

477, 483 (3d Cir. 2001). “Substantial evidence is more than a mere scintilla and is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).

This is a deferential standard, and the IJ’s “finding must be upheld unless the evidence

not only supports a contrary conclusion, but compels it.” Abdille, 242 F.3d at 483-84

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).



                                             2
       To qualify for asylum, a petitioner must be unwilling to return to his country

“because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.” INA

§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. The fear must be both subjective and

“supported by objective evidence that persecution is a reasonable possibility.” Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001) (quotation omitted). To obtain withholding of

removal, an applicant must establish that his “life or freedom would be threatened” on the

basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C.

§ 1231(b)(3)(A)]. To obtain protection under the Convention Against Torture, an

applicant must show it is more likely than not that he will be subjected to torture on

removal. Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir. 2005).

                                              III.

       The IJ’s adverse credibility determination rests on substantial evidence. See Dia v.

Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc) (on the standard). Singh told the IJ

that the Indian police took notice of him after he became a member of the Akali Dal

(Mann) political party in 1989. Once in 1991 and again in 1993, he said, the Indian

police came to his home looking for him. The IJ found this story unconvincing for a

number of reasons, some of which we detail below.

       First, Singh could not explain inconsistencies between his 1994 asylum application

and his current effort. In his earlier application, for instance, he indicated that it was his

membership in a different political party, the Akali Dal (Badal) Party, and his position in

                                               3
the Khalistan Commando Force that triggered the Indian government’s interest in him.

A.R. 192. In his new application, as well as in his testimony before the IJ, however,

Singh denied any involvement in these groups. See A.R. 93-97 (at the hearing, denying

any involvement with the Khalistan Commando Force), 182 (stating in the new

application that he was targeted because of his involvement with Akali Dal (Mann)).1 In

the 1994 application, Singh indicated that his brother and cousin had been arrested when

the police came to his home in 1991. A.R. 192. In the hearing before the IJ, though, he

indicated that he had himself also been taken into custody in 1991 when he went to the

police station after his relatives were arrested. A.R. 92-93. It is obviously difficult to

understand how Singh might have omitted his own arrest from his initial application.

Finally, in the 1994 application, Singh stated that he fled to the United States after being

hidden by friends in the Akali Dal movement; in the new application, however, he

indicated that he was living at his own home during the time in question. Compare

A.R. 182 with A.R. 191.

       In addition to noting inconsistencies between the two applications, the IJ also

pointed to a significant inconsistency between Singh’s updated asylum application and

his hearing testimony. A.R. 48. In the asylum application, Singh indicated that no one

was home when the police came looking for him in 1993. A.R. 182. He testified at the


   1
     Singh conceded that the Khalistan Commando Force was a terrorist group. See
A.R. 96. Notably, if Singh aided a terrorist organization, he would be statutorily
ineligible for asylum. See INA § 208(b)(2)(A)(v) [8 U.S.C. § 1158(b)(2)(A)(v)]. This
might explain the change in his story.
                                              4
hearing, however, that his mother was home at the time. A.R. 97. Finally, in addition to

all of these inconsistencies, the IJ criticized Singh for failing to offer any documentary

corroboration of his involvement in Akali Dal (Mann). A.R. 49. As the IJ noted, it likely

would have been possible—during his 10 years in the United States—for Singh to have

obtained some kind of proof of his membership in the organization.

       The inconsistencies identified by the IJ go “to the heart” of Singh’s allegations of

persecution, making them an appropriate basis for the adverse credibility determination.

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).2 Likewise, the IJ reasonably held

against Singh his failure to offer any documentary corroboration of his claim. See

Berishaj v. Ashcroft, 378 F.3d 314, 326 (3d Cir. 2004) (noting that an IJ may expect

corroboration or a satisfactory explanation for the lack of corroboration); see also INA

§ 242(b)(4) [8 U.S.C. § 1252(b)(4)] (establishing quite deferential review of a

“determination by a trier of fact with respect to the availability of corroborating

evidence”). Given these problems (and others), as well as the deferential standard of




   2
    The Real ID Act of 2005 created a new INA § 208(b)(1)(B) [8 U.S.C.
§ 1158(b)(1)(B)] that apparently requires us to give even greater deference to an IJ’s
credibility determinations, even to determinations relying on inconsistencies and
omissions that do not go “to the heart of” an alien’s claims. Whatever the impact of this
new provision, however, it does not apply to cases such as this one, in which the asylum
application was filed long before the enactment of the Real ID Act. Real ID Act of 2005,
Pub. L. No. 109-13, Div. B, § 101(h)(2), 119 Stat. 231 (May 11, 2005).
                                              5
review that governs, we could not possibly disturb the IJ’s credibility determination. See

See Dia, 353 F.3d at 247.3

                                            IV.

       For the reasons given, we will deny the petition for review.




   3
     Because Singh did not meet his burden of making out an asylum claim, he
necessarily failed to allege facts sufficient to make the more demanding showing
necessary for withholding of removal. See, e.g., Etugh v. INS, 921 F.2d 36, 40 (3d Cir.
1990). Furthermore, as the IJ concluded, nothing in the record suggests any probability
that Singh will be tortured. See A.R. 52.
                                             6
