09-3058-ag
Singh v. Holder
                                                                                BIA
                                                                          Abrams, IJ
                                                                        A093 394 054
                       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 25 th day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
               Chief Judge,
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
              Circuit Judges.
_______________________________________

HARJIT SINGH,
         Petitioner,

                  v.                                               09-3058-ag
                                                                          NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:                Genet Getachew, Brooklyn, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               James A. Hunolt, Senior Litigation
                               Counsel;   Aviva   L.  Poczter,   Trial
                               Attorney,    Office   of    Immigration
                               Litigation, 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

GRANTED.

    Petitioner Harjit Singh, a native and citizen of India,

seeks review of the July 10, 2009, order of the BIA affirming

the April 23, 2008, decision of Immigration Judge (“IJ”)Steven

R. Abrams denying his application for asylum, withholding of

removal,    and   relief   under   the   Convention   Against   Torture

(“CAT”).    In re Harjit Singh, No. A093 394 054 (B.I.A. July 10,

2009), aff’g No. A093 394 054 (Immig. Ct. N.Y. City April 23,

2008).     We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

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

decision as modified by the BIA.         See Dong Gao v. BIA, 482 F.3d

122, 125 (2d Cir. 2007).     The applicable standards of review are

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

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

    The IJ found that the petitioner had not established the

timeliness of his asylum application and therefore pretermitted

the asylum claim.     However, the IJ also considered the merits

of the asylum claim and rejected it. Without considering the



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timeliness issue, the BIA agreed with the IJ that Singh failed

to establish his eligibility for asylum, withholding of removal,

and CAT relief based solely on his failure to sufficiently

corroborate       his    otherwise    credible   testimony.         See   8   U.S.C.

§ 1158(b)(1)(B)(ii); see also Kyaw Zwar Tun v. U.S. INS, 445

F.3d 554, 563 (2d Cir. 2006) (holding that “[a]n applicant may

be required to provide any reasonably available documentation

to corroborate the elements of her claim, or explain why such

documentation is unavailable, and the [agency] may rely on the

failure to do so in finding that the applicant has not met her

burden of proof”).          In doing so, it affirmed the IJ’s finding

that none of the documents in the record indicated that Singh

had   ever    been      arrested,    detained,   or   beaten    by    the     Indian

police.      However, as Singh contends, neither the IJ’s nor the

BIA’s decisions indicate that they considered an affidavit from

Parkash Kaur, the Sarpanch of Pandori Lubana village, stating

that Singh was arrested twice in 2003, and that the police

“tortured him during the time he was in custody.” While we

generally “presume that [the agency] has taken into account all

of the evidence before [it], unless the record compellingly

suggests otherwise,” see Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 338 n.17 (2d Cir. 2006), the agency’s evident

failure      to   consider     documentary       evidence      in     the     record


                                        -3-
constitutes reversible error, see Jorge-Tzoc v. Gonzales, 435

F.3d 146, 150 (2d Cir. 2006); see also Yan Chen v. Gonzales, 417

F.3d 268, 272-73 (2d Cir. 2005). In this case, we cannot presume

that the agency considered the Kaur affidavit in view of the

IJ’s explicit statement that “[w]e do not have any documents

that indicate that [petitioner] had in fact been beaten at any

point in time.”         Because we cannot predict with confidence that

the BIA would reach the same conclusion, i.e., that Singh failed

to adequately corroborate his claim, if it considered the Kaur

affidavit describing his arrest and torture, remand to the BIA

is appropriate.          Cf. Mamadou Aliou Diallo v. U.S. Dep’t of

Justice, 548 F.3d 232, 235 (2d Cir. 2008).

      For   the   foregoing      reasons,      the   petition   for   review    is

GRANTED and the proceedings REMANDED to the BIA for further

consideration consistent with this order.                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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