     16-3683
     Singh v. Sessions
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 088 879
                              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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 24th day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            GUIDO CALABRESI,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   HARJINDER SINGH,
14            Petitioner,
15
16                       v.                                      16-3683
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Anas J. Ahmed, Pannun The Firm,
24                                       P.C., Jackson Heights, N.Y.
25
26   FOR RESPONDENT:                     Chad A. Readler, Assistant
27                                       Attorney General; Andrew N.
28                                       O’Malley, Senior Litigation
29                                       Counsel; Kimberly A. Burdge, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, U.S. Department of
32                                       Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5        Petitioner Harjinder Singh, a native and citizen of

6    India, seeks review of an October 6, 2016, decision of the

7    BIA affirming an October 2, 2015, decision of an

8    Immigration Judge (“IJ”) denying Singh’s application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Harjinder Singh,

11   No. A 206 088 879 (B.I.A. Oct. 6, 2016), aff’g No. A 206 088

12   879 (Immig. Ct. N.Y. City Oct. 2, 2015).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as the final agency decision. Shunfu Li v.

17   Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).    The applicable

18   standards of review are well established.       See 8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20   66 (2d Cir. 2008).

21       The governing REAL ID Act credibility standard provides

22   that the agency must “[c]onsider[] the totality of the

23   circumstances,” and may base a credibility finding on
                                   2
1    inconsistencies or omissions in an applicant’s or his

2    witness’s statements, “without regard to whether” they go

3    “to the heart of the applicant’s claim.” 8 U.S.C.

4    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-

5    67. “[E]ven where an IJ relies on discrepancies or lacunae

6    that, if taken separately, concern matters collateral or

7    ancillary to the claim, the cumulative effect may

8    nevertheless be deemed consequential by the fact-finder.”

9    Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)

10   (internal citation and quotation marks omitted). “We

11   defer . . . to an IJ’s credibility determination

12   unless . . . it is plain that no reasonable fact-finder

13   could make such an adverse credibility ruling.” Xiu Xia

14   Lin, 534 F.3d at 167. Given the number of inconsistencies

15   and the inconsistency between Singh’s testimony and his

16   corroborating evidence, we conclude that substantial

17   evidence supports the agency’s adverse credibility

18   determination.

19       First, Singh’s testimony differed from his party’s

20   letter about where he lived in the United States, and Singh

21   has not challenged that finding in his brief. See Norton v.

22   Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

23   sufficiently argued in the briefs are considered waived and
                                  3
1    normally will not be addressed on appeal.”). This

2    inconsistency therefore stands as an appropriate basis for

3    the credibility determination. Xiu Xia Lin, 534 F.3d at 167

4    (“[A]n IJ may rely on any inconsistency . . . in making an

5    adverse credibility determination as long as the ‘totality

6    of the circumstances’ establishes that an asylum applicant

7    is not credible.”).

8        Second, Singh’s testimony and party’s letter differed

9    about his status in the party.    Id.   Singh repeatedly

10   testified that he was a worker, not a party member;

11   however, his party’s letter states that he was a long-time

12   member.   Singh’s arguments that he was goaded into

13   contradicting himself and that any distinction is merely

14   semantics are unexhausted and contradicted by the record.

15   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

16   Cir. 2007) (requiring exhaustion of issues before the BIA).

17   Singh repeatedly and clearly testified that he was a

18   worker, not a party member, and government counsel

19   explicitly confirmed that Singh understood this line of

20   questioning.

21       Third, Singh’s testimony that his brother was not

22   involved with the party contradicted his brother’s letter,

23   which stated that he belonged to the party and participated
                                   4
1    in party activities.    Xiu Xia Lin, 534 F.3d at 167.

2    Although Singh now contends that his brother became

3    involved in the party after he (Singh) left India, Singh

4    testified that he did not know if his brother became

5    involved after he left India.       Majidi v. Gonzales, 430 F.3d

6    77, 80 (2d Cir. 2005) (“A petitioner must do more than

7    offer a plausible explanation for his inconsistent

8    statements to secure relief; he must demonstrate that a

9    reasonable fact-finder would be compelled to credit his

10   testimony.” (internal quotation marks omitted)).

11   Accordingly, he has not presented a compelling explanation.

12       Fourth, Singh’s testimony that he had only internal

13   injuries from an attack conflicted with his doctor’s

14   description of multiple abrasions and treatment with

15   antiseptic dressings.    Xiu Xia Lin, 534 F.3d at 167.    Singh

16   declined an opportunity to explain through redirect.      Singh

17   now attempts to recharacterize his testimony by stating

18   that he had only minor abrasions and therefore did not use

19   the antiseptic bandages given to him.      This explanation is

20   both unexhausted and not supported by the record, given his

21   repeated testimony that he had only internal injuries.      See

22   Lin Zhong, 480 F.3d at 122; Siewe v. Gonzales, 480 F.3d

23   160, 167-68 (2d Cir. 2007) (“Where there are two
                                     5
1    permissible views of the evidence, the factfinder’s choice

2    between them cannot be clearly erroneous. . . . [R]ecord

3    support for a contrary inference—even one more plausible or

4    more natural—does not suggest error.” (internal quotation

5    marks omitted)).

6        Last, Singh’s lack of knowledge about the letter from

7    his party further undermined his credibility.       Biao Yang v.

8    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

9    failure to corroborate his or her testimony may bear on

10   credibility, because the absence of corroboration in

11   general makes an applicant unable to rehabilitate testimony

12   that has already been called into question.”); see also

13   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

14   (2d Cir. 2006) (observing that the weight accorded to an

15   applicant’s “evidence lie[s] largely within the discretion

16   of the IJ.” (internal quotation marks omitted)).      As the IJ

17   found, Singh had difficulty stating whether the author knew

18   him personally.    See Siewe, 480 F.3d at 167-68.

19       Given the foregoing inconsistencies, which undermine

20   Singh’s testimony and the reliability of his evidence, we

21   conclude that the adverse credibility determination is

22   supported by the “totality of the circumstances.” Xiu Xia

23   Lin, 534 F.3d at 167. The adverse credibility determination
                                    6
1    is dispositive of asylum, withholding of removal, and CAT

2    relief because all three claims are based on the same

3    factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-

4    57 (2d Cir. 2006).

5        For the foregoing reasons, the petition for review is

6    DENIED. As we have completed our review, any stay of removal

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.   Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                           FOR THE COURT:
14                           Catherine O’Hagan Wolfe
15                           Clerk of Court




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