    14-2388 (L)
    Singh v. Lynch
                                                                                        BIA
                                                                                    Cheng, IJ
                                                                            A098-244-266/267
                          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.

         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
    25th day of February, two thousand sixteen.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    AVTAR SINGH, PUSHPINDER KAUR,
             Petitioners,

                     v.                                              14-2388(L),
                                                                     15-883(Con)
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                     Jeffrey E. Baron, Baron & Shelkin,
                                         P.C., New York, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal
                                         Assistant Attorney General, Justin
                                         R. Markel, Senior Litigation
                               Counsel, Margaret A. O’Donnell,
                               Trial Attorney, Office of
                               Immigration Litigation, United
                               States Department of Justice,
                               Washington, D.C.

    UPON DUE CONSIDERATION of these petitions for review of

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

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

    In     the   lead    petition,    petitioners      Avtar   Singh   and

Pushpinder Kaur, natives and citizens of India, seek review of

a June 6, 2014 decision of the BIA affirming a July 18, 2013

decision    of   an     Immigration       Judge   (“IJ”)   denying   their

application for withholding of removal.            See In re Avtar Singh,

Pushpinder Kaur, Nos. A098 244 266/267 (B.I.A. June 6, 2014),

aff’g Nos. A098 244 266/267 (Immig. Ct. N.Y.C. July 18, 2013).

In the consolidated petition, petitioners seek review of a

February 24, 2015 decision of the BIA denying reconsideration

of the denial of their motion to reopen.           See In re Avtar Singh,

Pushpinder Kaur, Nos. A098 244 266/267 (B.I.A. Feb. 24, 2015).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.


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     1.     Denial of Application for Withholding of Removal

          The lead petition challenges the adverse credibility

determination on which the denial of withholding was based.

Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA.           See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

          Where, as here, an application is governed by the REAL ID

Act of 2005, the agency may, in light of “the totality of the

circumstances,” base an adverse credibility determination on

an asylum applicant’s “demeanor, candor, or responsiveness,”

the plausibility of his account, and inconsistencies in his

statements, “without regard to whether” those inconsistencies

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

§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165 (2d Cir. 2008).        “We defer therefore to an IJ’s 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, 534 F.3d at 167.




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    The IJ reasonably relied on discrepancies between Singh’s

testimony and record evidence in finding him not credible. 1

Singh testified that on October 1, 2007, his father’s murderers

attacked him, and he spent the following three days in the

hospital.   On cross-examination, Singh confirmed that he did

not have to go back for follow-up and did not see the doctor

after October 3.   A doctor’s note, however, stated that Singh

“was under [the doctor’s] treatment” from October 1 to October

6, 2007.    Certified Administrative Record (“CAR”) 236.   When

confronted with this date discrepancy, Singh explained that he

“did get examined by” the doctor, in that he went to “get the

medicine from him.”   CAR 165.   A reasonable adjudicator would

not be compelled to credit this explanation and, thus, the IJ

was entitled to reject it.    See Majidi v. Gonzales, 430 F.3d

77, 80 (2d Cir. 2005).

    The IJ further observed that the doctor’s note said nothing

about Singh’s hospitalization and that it was written in

English.    When pressed on these points, Singh stated that he

1
 Because Singh’s wife was a derivative beneficiary of Singh’s
application for relief, the case therefore turned on Singh’s
credibility regarding the harm he suffered in India.
Accordingly, we here refer to Singh as petitioner for ease of
reference.
                              4
had   no    record    from   the     hospital      and   that    doctors   give

“medicines, prescriptions in English.”               CAR 168.     Again, these

were not compelling explanations, particularly because the note

said nothing about medicine or a prescription.                  See Majidi, 430

F.3d at 80.        Moreover, there was a second date discrepancy:

Singh testified that he requested the letter in 2011, but the

note was backdated to October 6, 2007.                    Singh offered no

explanation for this discrepancy.

      The   IJ     also   reasonably       found   that    Singh’s    demeanor

undermined his credibility.             Because an IJ is in the best

position to observe an applicant’s demeanor while testifying,

we accord that finding deference.             See Zhou Yun Zhang v. INS,

386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other grounds

by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.

2007).       The     IJ   observed    that    Singh      was    hesitant   when

cross-examined about the doctor’s note and that certain of his

other answers were “nonresponsive and sometimes evasive.”                   CAR

49.   This finding is supported by Singh’s inability to explain

the discrepancies between his testimony and the doctor’s note.

See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

Cir. 2006) (“We can be still more confident in our review of
                                       5
observations about an applicant’s demeanor where, as here, they

are     supported   by   specific   examples    of   inconsistent

testimony.”).

       We have considered Singh’s various challenges to the

adverse credibility determination and find each to be without

merit.    Accordingly, we deny the lead petition for review.

  2.     Denial of Motion for Reconsideration

       The consolidated petition challenges the BIA’s denial of

Singh’s motion for reconsideration of its denial of his motion

to reopen.    Both motions were based on three newly proffered

documents: a letter from Singh’s doctor, which Singh claimed

would surmount the adverse credibility determination; and an

affidavit from his mother and a statement from an administrator

at his daughter’s school, both of which, he claimed, would

demonstrate his prima facie eligibility for asylum.

       We review both the denial of a motion to reopen and the

denial of a motion for reconsideration for abuse of discretion.

See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Jin Ming

Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).       Although

there was some confusion as to whether Singh’s supporting

documents were timely filed, on the motion for reconsideration
                                6
the BIA assessed Singh’s documents and concluded that, in any

event,    none   warranted     reopening.      See    8   U.S.C.

§ 1229a(c)(7)(B) (“The motion to reopen shall state the new

facts that will be proven at a hearing to be held if the motion

is granted, and shall be supported by affidavits or other

evidentiary material.”).     We identify no abuse of discretion

in that decision. With respect to the second doctor’s note,

Singh failed to explain why this more detailed note regarding

his 2007 treatment was not available at his merits hearing in

2013.    Accordingly, the BIA did not abuse its discretion in

denying his motion to reopen based on this evidence.       See 8

C.F.R. § 1003.2(c)(1) (providing that motion to reopen “shall

not be granted” unless proffered evidence “was not available

and could not have been discovered or presented at the former

hearing”).

    Singh also challenges the BIA’s rejection of the other two

documents.   His mother’s affidavit attested to ongoing threats

from his attacker, Mohinder Singh, and the police.   The BIA gave

the document limited weight in light of the adverse credibility

determination against Singh.    This treatment was permissible.

See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)
                                7
(stating that “single instance of false testimony may (if

attributable to the petitioner) infect the balance of the

alien’s uncorroborated or unauthenticated evidence”).

       The   BIA    deemed   the   school    administrator’s   statement

unreliable because it was not sworn, made under penalty of

perjury, or notarized.         The BIA therefore concluded that it

could not “be certain of the declarant’s identity, much less

the reliability of the substance contained therein.”            Special

App’x 31.      The BIA was within its discretion to draw this

conclusion.        See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 342 (2d Cir. 2006) (explaining that weight accorded to

documentary evidence lies largely within agency’s discretion).

       Accordingly, the BIA did not abuse its discretion in

denying      Singh’s     motion    for      reconsideration,   and   his

consolidated petition is therefore denied.

  3.     Conclusion

       For the foregoing reasons, the petitions for review are

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

that the Court previously granted in these petitions are

VACATED, and any pending motion for stays of removal in these

petitions is DISMISSED as moot.          Any pending request for oral
                                     8
argument in these petitions 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 of Court




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