     18-362
     Singh v. Barr
                                                                          BIA
                                                                      Segal, IJ
                                                                  A087 997 707
                          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 12th day of June, two thousand twenty.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            DEBRA ANN LIVINGSTON,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   TAJINDER SINGH,
14            Petitioner,
15
16                   v.                                  18-362
17                                                       NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Pardeep Singh Grewal, Castro
24                                   Valley, CA.
25
26   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
27                                   General; Cindy S. Ferrier,
28                                   Assistant Director; Kimberly A.
 1                                 Burdge, Trial Attorney, Office of
 2                                 Immigration Litigation, United
 3                                 States Department of Justice,
 4                                 Washington, DC.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Tajinder Singh, a native and citizen of India,

10   seeks review of a January 9, 2018 reissued decision of the

11   BIA affirming an April 28, 2015 decision of an Immigration

12   Judge   (“IJ”)     denying    Singh’s       application     for   asylum,

13   withholding   of   removal,    and       relief   under   the   Convention

14   Against Torture (“CAT”).      In re Tajinder Singh, No. A 087 997

15   707 (B.I.A. Jan. 9, 2018), aff’g No. A 087 997 707 (Immig. Ct.

16   N.Y. City Apr. 28, 2015).      We assume the parties’ familiarity

17   with the underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the BIA’s and IJ’s decisions.                See Yun-Zui Guan v.

20   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).               The applicable

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

22   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

23   (2d Cir. 2018) (reviewing adverse credibility determination

                                          2
1    under a substantial evidence standard).

2        The governing REAL ID Act credibility standard provides

3    as follows:

 4       Considering the totality of the circumstances, and
 5       all relevant factors, a trier of fact may base a
 6       credibility determination on the demeanor, candor,
 7       or responsiveness of the applicant or witness, . .
 8       . the consistency between the applicant’s or
 9       witness’s written and oral statements . . . , the
10       internal consistency of each such statement, the
11       consistency of such statements with other evidence
12       of record . . . , and any inaccuracies or falsehoods
13       in such statements, without regard to whether an
14       inconsistency, inaccuracy, or falsehood goes to the
15       heart of the applicant’s claim, or any other
16       relevant factor.
17
18   8 U.S.C. § 1158(b)(1)(B)(iii).    We “defer . . . to an IJ’s

19   credibility determination unless . . . it is plain that no

20   reasonable fact-finder could make such an adverse credibility

21   ruling.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

22   2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76.

23   Substantial   evidence   supports    the   agency’s   adverse

24   credibility determination.

25       The multiple inconsistencies among Singh’s testimony and

26   documentary evidence provide substantial evidence for the

27   adverse credibility determination.   First, Singh’s testimony

28   regarding the dates and locations of persecution he claimed


                                   3
 1   to have experienced in India was inconsistent with letters

 2   from his parents and a childhood friend.          In particular, the

 3   letters recounted that Singh was beaten in his family home on

 4   December 3, 2009, but Singh testified that this beating

 5   occurred in November 2007 and denied that he was beaten at

 6   all on December 3, 2009.

 7       Singh argues that the IJ erred by not providing him an

 8   opportunity    to   explain   these      discrepancies   and    further

 9   contends   that     this   error   was     compounded    by    what   he

10   characterizes as the IJ’s awareness that Singh’s counsel was

11   ineffective.      But Singh’s arguments relating to ineffective

12   assistance of counsel are not properly before us, as Singh

13   did not exhaust them before the agency.         See Arango-Aradondo

14   v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (petitioner must first

15   raise ineffective assistance of counsel claims with the BIA).

16   And no opportunity to explain discrepancies is required,

17   inter alia, where an individual’s testimony is “dramatically

18   different” from the documentary evidence.          See Ming Shi Xue

19   v. BIA, 439 F.3d 111, 114–15 (2d Cir. 2006) (IJ may rely on

20   inconsistencies not brought to asylum seeker’s attention when

21   inconsistencies are “dramatic” and “sufficiently conspicuous


                                        4
 1   and central to the applicant’s claim as to be self-evident”).

 2         Second,   Singh’s    testimony      regarding      the   dates   and

 3   duration of hospital stays was inconsistent with letters from

 4   the   hospital,    and    he     failed   to   provide    a    convincing

 5   explanation for these discrepancies despite receiving an

 6   opportunity to do so.          See Majidi v. Gonzales, 430 F.3d 77,

 7   80 (2d Cir. 2005) (“A petitioner must do more than offer a

 8   plausible explanation for his inconsistent statements to

 9   secure relief; he must demonstrate that a reasonable fact-

10   finder would be compelled to credit his testimony.” (internal

11   quotation marks and citations omitted)).          The medical letters

12   described a six-day hospitalization, but Singh initially

13   testified that he was hospitalized for only one or two days;

14   when questioned about this discrepancy, Singh changed his

15   testimony, but ultimately maintained that the letters were

16   incorrect without providing any reason for this error.                 The

17   IJ reasonably relied on Singh’s inability to explain these

18   inconsistencies.    See Majidi, 430 F.3d at 79–80.

19         Third, we defer to the IJ’s demeanor finding, which adds

20   further support for the adverse credibility determination.

21   See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d


                                          5
 1   Cir. 2005) (deferring to demeanor finding “in recognition of

 2   the fact that the IJ’s ability to observe the witness’s

 3   demeanor places her in the best position to evaluate whether

 4   apparent problems in the witness’s testimony suggest a lack

 5   of credibility or, rather, can be attributed to an innocent

 6   cause such as difficulty understanding the question”).                  The

 7   record reflects that Singh gave non-responsive answers to

 8   questions from counsel and the IJ, and the IJ identified

 9   specific    examples   of    Singh’s   testimony     to    support      her

10   determination.

11        Finally, the agency reasonably concluded that Singh’s

12   documentary evidence did not rehabilitate his credibility.

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

14   (“An applicant’s failure to corroborate his . . . testimony

15   may bear on credibility, because the absence of corroboration

16   in   general   makes   an    applicant   unable      to    rehabilitate

17   testimony that has already been called into question”).                 As

18   discussed   previously,      the   letters   Singh    submitted      were

19   inconsistent   with    his   testimony   regarding        the   dates   of

20   particular incidents and the duration of his hospital stays.

21   Further, an additional letter from Singh’s political party


                                        6
 1   did not address, and thus did not corroborate, his allegations

 2   of past harm.

 3         Given the inconsistencies between Singh’s testimony and

 4   his documentary evidence, as well the demeanor finding and

 5   the lack of reliable corroboration, substantial evidence

 6   supports the adverse credibility determination.       See 8 U.S.C.

 7   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.       Because

 8   Singh’s claims were all based on the same factual predicate,

 9   the   adverse   credibility   determination   is   dispositive   of

10   asylum, withholding of removal, and CAT relief.       See Paul v.

11   Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

12         For the foregoing reasons, the petition for review is

13   DENIED.   All pending motions and applications are DENIED and

14   stays VACATED.

15                                  FOR THE COURT:
16                                  Catherine O’Hagan Wolfe,
17                                  Clerk of Court




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