     18-2676
     Singh v. Barr
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A205 585 561
                          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 13th day of November, two thousand
 5   nineteen.
 6
 7   PRESENT:
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10            MICHAEL H. PARK,
11                 Circuit Judges.
12   _____________________________________
13   AZADWINDER SINGH,
14            Petitioner,
15
16                   v.                                          18-2676
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Usman B. Ahmad, Long Island City,
24                                    NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Julie M.
28                                    Iversen, Senior Litigation
29                                    Counsel; Kathryn M. McKinney,
30                                    Trial Attorney, Office of
31                                    Immigration Litigation, United
32                                    States Department of Justice,
33                                    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 Azadwinder Singh, a native and citizen of

6    India, seeks review of an August 14, 2018 decision of the BIA

7    affirming a September 13, 2017 decision of an Immigration

8    Judge (“IJ”) denying his application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Azadwinder Singh, No. A 205 585 561 (B.I.A.

11   Aug. 14, 2018), aff’g No. A 205 585 561 (Immig. Ct. N.Y. City

12   Sept. 13, 2017).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       In lieu of filing a brief, the Government moves for

15   summary denial of Singh’s petition for review.     Rather than

16   determine if the petition is frivolous as is required for

17   summary denial, see Pillay v. INS, 45 F.3d 14, 17 (2d Cir.

18   1995), we construe the Government’s motion as its brief and

19   deny the petition on the merits.

20       Under the circumstances of this case, we have reviewed

21   both the BIA’s and IJ’s decisions.    See Yan Chen v. Gonzales,

22   417 F.3d 268, 271 (2d Cir. 2005).     The applicable standards
                                    2
1    of     review     are      well     established.            See      8 U.S.C.

2    § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

3    (2d Cir. 2018).

4           “Considering the totality of the circumstances, and all

5    relevant factors, a trier of fact may base a credibility

6    determination on . . . the consistency between the applicant’s

7    or witness’s written and oral statements . . . , the internal

8    consistency of each such statement, [and] the consistency of

9    such statements with other evidence of record . . . .”

10   8 U.S.C. § 1158(b)(1)(B)(iii).              “We defer . . . to an IJ’s

11   credibility determination unless, from the totality of the

12   circumstances, it is plain that no reasonable fact-finder

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

14   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

15   Gao, 891 F.3d at 76.              Substantial evidence supports the

16   agency’s determination that Singh was not credible as to his

17   claim of past persecution by the Akali Dal Badal party on

18   account of his participation in the Congress Party.

19          As an initial matter, the agency did not err in finding

20   that    Singh’s    statements      at   his   initial   interviews      with

21   Customs    and    Border    Patrol      and   an   asylum    officer    bore

22   sufficient       indicia    of    reliability      so   as    to      warrant
                                             3
1    evidentiary weight.         See Ming Zhang v. Holder, 585 F.3d 715,

2    725 (2d Cir. 2009).         The records do not indicate that Singh

3    had    difficulty      communicating,       and      the     records      are

4    typewritten, in question-and-answer format, and purport to be

5    a   “full,    true    and    correct”   account      of    the    interview.

6    Moreover,     Singh   testified    that    he    remembered      making   the

7    specific statements at his interview that were inconsistent

8    with his later testimony.

9          Given   Singh’s       inconsistent   statements       and    lack    of

10   reliable corroboration, the record supports the agency’s

11   adverse credibility determination.              First, Singh told border

12   officials that he was attacked by Akali Dal Badal party

13   members four or five times, but he later testified that he

14   was beaten only twice.        The agency was not required to credit

15   Singh’s explanation that he gave different accounts because

16   he was nervous.       See Yun-Zui Guan v. Gonzales, 432 F.3d 391,

17   397 n.6 (2d Cir. 2005).

18         Second, the agency reasonably relied on the inconsistency

19   in Singh’s statements about his interactions with the police

20   in India.     He initially stated he was not arrested in India,

21   then said that he was arrested and beaten by the police, then

22   stated the police threatened but did not beat him.                        The
                                         4
1    changing content of his testimony was obvious from the records

2    of the interviews, so the IJ was not required to solicit an

3    explanation for the inconsistencies.       Cf. Ming Shi Xue v.

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

5    incongruities in an asylum applicant’s testimony are not

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

7    adverse credibility ruling without first identifying the

8    alleged inconsistencies for the applicant and giving the

9    applicant an opportunity to address them.”).

10       Third, the agency reasonably found that Singh failed to

11   submit reliable documentary evidence.      An asylum applicant’s

12   failure to corroborate may bear on his credibility, “because

13   the absence of corroboration in general makes an applicant

14   unable to rehabilitate testimony that has already been called

15   into question.”    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

16   Cir. 2007).       The agency acted within its discretion in

17   affording little weight to Singh’s evidence.        See Y.C. v.

18   Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer

19   to the agency’s evaluation of the weight to be afforded an

20   applicant’s   documentary   evidence.”).      Singh’s   parents’

21   affidavits were nearly identical to his own in describing his

22   assault by Akali Dal Badal members.     See Mei Chai Ye v. U.S.
                                    5
1    Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007) (explaining

2    that we “ha[ve] firmly embraced the commonsensical notion

3    that    striking   similarities       between    affidavits     are   an

4    indication that the statements are ‘canned’”).           An affidavit

5    Singh produced from a Congress Party leader conflicted with

6    Singh’s own testimony, and Singh appeared to lack knowledge

7    of its contents.       See Siewe v. Gonzales, 480 F.3d 160, 170

8    (2d Cir. 2007) (“[A] single false document or a single

9    instance of false testimony may (if attributable to the

10   petitioner) infect the balance of the alien’s uncorroborated

11   or unauthenticated evidence.”).           And the authors of the

12   statements were not subject to cross-examination.             See Matter

13   of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010), rev’d

14   on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

15   Cir. 2012).

16          Given   these   inconsistencies     and    lack   of    reliable

17   corroboration, the agency’s adverse credibility determination

18   is supported by substantial evidence and was dispositive of

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

20   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).                  Singh’s

21   ineffective assistance claim also fails: As the BIA observed,

22   Singh did not comply with the procedural requirements of
                                       6
1    Matter     of   Lozada,    19   I.   &       N.   Dec.   637   (B.I.A.   1988).

2    Accordingly, he forfeited his ineffective assistance claim.

3    See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46–

4    48   (2d   Cir.   2005).        Moreover,         as   discussed   above,   the

5    interview records were sufficiently reliable, so counsel

6    neither acted unreasonably nor caused prejudice by failing to

7    challenge their admission.            See Rabiu v. INS, 41 F.3d 879,

8    882 (2d Cir. 1994).

9         For the foregoing reasons, the petition for review is

10   DENIED.     All pending motions and applications are DENIED and

11   stays VACATED.

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




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