     17-1620
     Singh v. Whitaker
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A205 587 165
                              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 9th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GURNAM SINGH,
14            Petitioner,
15
16                       v.                                      17-1620
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Khagendra Gharti-Chhetry, New
24                                       York, NY.
25
26   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
27                                       Attorney General; Mary Jane
28                                       Candaux, Assistant Director; Remi
29                                       Da Rocha-Afodu, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of
32                                       Justice, Washington, DC.
 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 Gurnam Singh, a native and citizen of India,

 6   seeks review of an April 26, 2017, decision of the BIA

 7   affirming a July 28, 2016, decision of an Immigration Judge

 8   (“IJ”) denying Singh’s application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Gurnam Singh, No. A 205 587 165 (B.I.A. Apr.

11   26, 2017), aff’g No. A 205 587 165 (Immig. Ct. N.Y. City July

12   28, 2016).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14        We have considered both the IJ’s and the BIA’s opinions

15   “for the sake of completeness.”                  Wangchuck v. Dep’t of

16   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).                 We review

17   the adverse credibility determination under a substantial

18   evidence standard.         See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

19   v.   Mukasey,   534    F.3d      162,   165-66   (2d   Cir.   2008).     The

20   governing    REAL     ID   Act    credibility     standard    provides   as

21   follows:

22        Considering the totality of the circumstances, and
23        all relevant factors, a trier of fact may base a
24        credibility determination on the demeanor, candor,
                                   2
 1        or responsiveness of the applicant or witness, . .
 2        . the consistency between the applicant’s or
 3        witness’s written and oral statements . . . , the
 4        internal consistency of each such statement, the
 5        consistency of such statements with other evidence
 6        of record . . . , and any inaccuracies or falsehoods
 7        in such statements, . . . or any other relevant
 8        factor.
 9
10   8 U.S.C. § 1158(b)(1)(B)(iii).           “We defer . . . to an IJ’s

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

12   reasonable fact-finder could make such an adverse credibility

13   ruling.”     Xiu   Xia   Lin,     534   F.3d   at     167.        The    agency

14   reasonably relied on inconsistencies between Singh’s written

15   statement, corroborating evidence, and testimony, as well as

16   his demeanor and lack of reliable corroborating evidence,

17   which, considered together, provide substantial evidence for

18   the adverse credibility determination.

19        The agency reasonably relied on inconsistencies between

20   Singh’s testimony and his documentary evidence regarding

21   whether    Singh   was   harmed    by    the   police        or    government

22   authorities in India.       See 8 U.S.C. § 1158(b)(1)(B)(iii).

23   Affidavits from Singh’s wife and a village leader stated that

24   government agencies beat and tortured Singh, Spec. App. 34

25   n.2, while Singh testified that he was tortured only by

26   members of the Congress Party.           Singh’s explanation created

27   an   additional    inconsistency:       he   stated    that       he    was   not

                                         3
1    tortured when he went to the police but that he was kept for

2    one day and then released.   See Majidi v. Gonzales, 430 F.3d

3    77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

4    a plausible explanation for his inconsistent statements to

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

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

7    quotation marks and citations omitted)).

8        Singh’s testimony was also inconsistent with his

9    written statement.   He wrote that in June 2015, Congress

10   Party members went to his home where they threatened his

11   wife and assaulted his sons, but he testified that his

12   family was not at home when the members arrived, so the

13   members moved on to his brother’s house.   Singh argues that

14   this discrepancy should not be considered because he was in

15   the United States at the time of the event.   But the agency

16   reasonably relied on the discrepancy as Singh volunteered

17   information about the incident in a written statement

18   prepared only days before his hearing and then testified to

19   a “dramatically different” version of events.   See Majidi,

20   430 F.3d at 80 (determining that “dramatically different”

21   accounts of an incident was substantial evidence for an

22   adverse credibility determination).   Given the obvious

23   nature of the inconsistency, the IJ was not required to
                                   4
1    press Singh for further explanation or call the

2    inconsistency to his attention.    Cf. Ming Shi Xue v. BIA,

3    439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived

4    incongruities in an asylum applicant’s testimony are not

5    plainly obvious, an IJ cannot rely on them to support an

6    adverse credibility ruling without first identifying the

7    alleged inconsistencies for the applicant and giving the

8    applicant an opportunity to address them.”).

9        The agency also reasonably relied on another

10   inconsistency between Singh’s testimony and written

11   statement.   In his written statement, Singh reported that

12   he was attacked by three individuals in December 2012, but

13   he testified on cross-examination that four individuals

14   attacked him.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

15   Lin, 534 F.3d at 167 (“[A]n IJ may rely on any

16   inconsistency or omission in making an adverse credibility

17   determination as long as the ‘totality of the

18   circumstances’ establishes that an asylum applicant is not

19   credible.”).

20       The adverse credibility determination is bolstered by

21   the IJ’s description of Singh as evasive in responding to

22   questions       while    testifying.           See    8 U.S.C.

23   § 1158(b)(1)(B)(iii).   We grant particular deference to this
                                    5
1    finding, “in recognition of the fact that the IJ’s ability to

2    observe the witness’s demeanor places her in the best position

3    to   evaluate      whether    apparent     problems   in   the       witness’s

4    testimony suggest a lack of credibility or, rather, can be

5    attributed      to    an     innocent    cause    such     as    difficulty

6    understanding the question.”               Jin Chen v. U.S. Dep’t of

7    Justice, 426 F.3d 104, 113 (2d Cir. 2005).                       The record

8    supports     the     IJ’s    conclusion,    as   evidenced      by    Singh’s

9    nonresponsive answers to questions about his army service and

10   the injuries he allegedly sustained during an attack by the

11   Congress Party.

12        Finally, the agency reasonably concluded that Singh

13   failed to rehabilitate his credibility with reliable

14   corroborating evidence.          See Biao Yang v. Gonzales, 496

15   F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

16   corroborate his . . . testimony may bear on credibility,

17   because the absence of corroboration in general makes an

18   applicant unable to rehabilitate testimony that has already

19   been called into question”).            As discussed previously,

20   affidavits from Singh’s wife and a village leader were

21   inconsistent with Singh’s testimony regarding whether he

22   was tortured by government officials.            The reliability of

23   these affidavits and others was further undermined by their
                                   6
1    use of identical language despite allegedly independent

2    authorship.      See Mei Chai Ye v. U.S. Dep’t of Justice, 489

3    F.3d 517, 524 (2d Cir. 2007) (noting that our case law “has

4    firmly embraced the commonsensical notion that striking

5    similarities between affidavits are an indication that the

6    statements are ‘canned.’”).    Singh’s testimony undermined

7    the reliability of an affidavit submitted on behalf of the

8    Mann Party because Singh initially testified that the

9    person who signed the letter was not a Mann Party member.

10   Nor did the agency err in giving diminished weight to a

11   medical certificate that was not authenticated and did not

12   indicate in what year Singh received treatment.       See Y.C.

13   v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We

14   generally defer to the agency’s evaluation of the weight to

15   be afforded an applicant’s documentary evidence”).

16       Given the inconsistencies between Singh’s testimony,

17   proffered corroborating evidence, and written statement,

18   his evasiveness in answering questions, and the lack of

19   reliable corroborating evidence, the totality of the

20   circumstances supports the adverse credibility

21   determination.    See Xiu Xia Lin, 534 F.3d at 167.    Because

22   Singh’s claims were all based on the same factual

23   predicate, the adverse credibility determination is
                                   7
1    dispositive of asylum, withholding of removal, and CAT

2    relief.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

3    Cir. 2006)

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

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




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