     16-358
     Singh v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A201 291 500
                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   BALWINDER SINGH,
14            Petitioner,
15
16                    v.                                             16-358
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Jaspreet     Singh,     Jackson     Heights,
24                                       N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Paul
28                                       Fiorino, Senior Litigation Counsel;
29                                       Judith R. O’Sullivan, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       D.C.
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 is

4    DENIED.

5          Petitioner Balwinder Singh, a native and citizen of India,

6    seeks review of a January 6, 2016, decision of the BIA, affirming

7    a May 20, 2014, decision of an Immigration Judge (“IJ”) denying

8    Singh’s application for asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).          In re

10   Balwinder Singh, No. A201 291 500 (B.I.A. Jan. 6, 2016), aff’g

11   No. A201 291 500 (Immig. Ct. N.Y. City May 20, 2014).      We assume

12   the   parties’   familiarity   with    the   underlying   facts   and

13   procedural history of this case.

14         Under the circumstances of this case, we have reviewed both

15   the IJ’s and BIA’s decisions.        Yun-Zui Guan v. Gonzales, 432

16   F.3d 391, 394 (2d Cir. 2005).         The applicable standards of

17   review are well established.         See 8 U.S.C. § 1252(b)(4)(B);

18   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19         For asylum applications like Singh’s, governed by the REAL

20   ID Act, the agency may, “[c]onsidering the totality of the

21   circumstances,” base a credibility finding on an applicant’s

22   “demeanor, candor, or responsiveness,” the plausibility of his

23   account, and inconsistencies in his statements and evidence,


                                      2
1    “without regard to whether” those inconsistencies go “to the

2    heart of the applicant’s claim.”      8 U.S.C.

3    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.          “We

4    defer . . . to an IJ’s credibility determination unless, from

5    the totality of the circumstances, it is plain that no

6    reasonable fact-finder could make such an adverse credibility

7    ruling.”    Xiu Xia Lin, 534 F.3d at 167.    As discussed below,

8    the adverse credibility determination rests on substantial

9    evidence.

10        The agency reasonably relied on inconsistencies in Singh’s

11   testimony and other record evidence concerning his Shiromani

12   Akali Dal Party (“SAD”) membership—the heart of his claim of

13   persecution.   8 U.S.C. § 1158(b)(1)(B)(iii); see Xian Tuan Ye

14   v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A]

15   material inconsistency in an aspect of [an applicant’s] story

16   that served as an example of the very persecution from which

17   he   sought   asylum . . . afforded    substantial   evidence    to

18   support the adverse credibility finding.”).

19        As the IJ found, Singh’s “vacillating testimony”

20   concerning how he came to possess a letter from SAD’s president

21   undermined his credibility.    Singh submitted the letter to

22   confirm a matter central to his claim—his SAD membership.

23   Singh testified that he obtained the letter at the SAD office


                                     3
1    on March 31, 2009, the same day he officially joined the party,

2    and asked for the letter because “his life was in danger.”   The

3    IJ reasonably concluded that Singh’s testimony was implausible

4    and inconsistent: it strains credulity that Singh would have

5    feared harm based on his political opinion before he had joined

6    the party, particularly given his testimony that he had not been

7    harmed in any way before December 2009. See Wensheng Yan v.

8    Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (holding that “IJ is

9    entitled to consider whether the applicant’s story is

10   inherently implausible”).    Moreover, the letter was dated

11   September 2012, and lists Singh’s New York address, making it

12   impossible for Singh to have personally obtained it in India

13   in 2009, as he testified.   Finally, the letter does not describe

14   any of the three beatings Singh claims he had suffered; rather,

15   it is a generalized form letter that mentions Singh only in the

16   first and last paragraphs.    The agency reasonably found these

17   discrepancies significant because the letter was the only

18   evidence of Singh’s SAD membership, and the omission of any

19   incidents of persecution undermined his credibility.     See Xiu

20   Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission

21   are . . . functionally equivalent.”).

22       Singh argues that the agency erred in finding the letter

23   implausible, explaining that his family was threatened by


                                     4
1    members of the opposition party before 2009.            The agency was

2    not required to accept this explanation because it failed to

3    account for the fact that the letter was generalized and omitted

4    any incidents of persecution.      See Majidi v. Gonzales, 430 F.3d

5    77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

6    a plausible explanation for his inconsistent statements to

7    secure   relief;   he    must   demonstrate     that     a    reasonable

8    fact-finder would be compelled to credit his testimony.”

9    (quoting Zhou Yun Zhang v. INS, 386 F.3d 77, 76 (2d Cir. 2004))).

10         The IJ’s adverse credibility determination was bolstered

11   by additional inconsistent and evasive testimony related to

12   Singh’s family members in the United States.           “Evasiveness is,

13   of course, one of the many outward signs a fact-finder may

14   consider in evaluating demeanor and in making an assessment of

15   credibility.”   Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

16   2006). Singh first testified that he had no family members in

17   the United States.       When pressed, Singh admitted that his

18   sister used to live in the United States and that he still has

19   one aunt residing here.          Id.    When confronted with his

20   application, which listed a brother residing in the United

21   States, Singh confirmed the accuracy of the information.             The

22   IJ was not required to credit Singh’s explanations of confusion

23   and   forgetfulness     given   that   he   included    his    brother’s


                                        5
1    residence in his application and was asked multiple times about

2    his family in the United States.   See Majidi, 430 F.3d at 80.

3        Having questioned Singh’s credibility, the agency did not

4    err in concluding that Singh’s corroborating evidence was

5    insufficient to rehabilitate his testimony.    See Biao Yang v.

6    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

7    failure to corroborate his . . . testimony may bear on

8    credibility, because the absence of corroboration in general

9    makes an applicant unable to rehabilitate testimony that has

10   already been called into question.”).    The agency reasonably

11   accorded diminished weight to letters from another brother and

12   Singh’s father-in-law in India, as well as the letter from a

13   nursing home in India stating that Singh was treated there in

14   January 2011.   The letters were prepared for the purpose of

15   litigation, the family letters were from interested parties not

16   subject to cross examination, and the nursing home letter was

17   written in 2012 and thus was not contemporaneous with the

18   treatment Singh allegedly received.     See Matter of H-L-H- &

19   Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give

20   little weight to document drafted by interested witness not

21   subject to cross examination), rev’d on other grounds by Hui

22   Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).     “We defer

23   to the agency’s determination of the weight afforded to an


                                    6
1    alien’s documentary evidence.”      Y.C. v. Holder, 741 F.3d 324,

2    334   (2d   Cir.   2013).   Last,     the   IJ   reasonably   found

3    “particularly striking” the absence of testimony or written

4    statement from Singh’s brother in the United States in light

5    of Singh’s testimony that his brother knew what happened to him

6    in India.   See Biao Yang, 496 F.3d at 273.

7          Given the multiple inconsistencies, Singh’s evasiveness,

8    and Singh’s failure to provide reliable corroboration, it

9    cannot be said “that no reasonable fact-finder could make such

10   an adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.

11   That finding is dispositive of asylum, withholding of removal,

12   and CAT relief because Singha’s claims for all three forms of

13   relief are based on the same factual predicate.           Paul v.

14   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

15         For the foregoing reasons, the petition for review is

16   DENIED.

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk




                                    7
