                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                         December 7, 2018
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 HARPREET SINGH,

       Petitioner,

 v.                                                         No. 18-9518
                                                        (Petition for Review)
 MATTHEW G. WHITAKER, Acting
 United States Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT**
                       _________________________________

Before LUCERO, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Harpreet Singh petitions this court for review of the Board of Immigration

Appeals’ (“BIA”) panel decision denying his application for asylum, withholding of




      
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Matthew G. Whitaker is substituted for Jefferson B. Sessions, III, as the
respondent in this action.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
removal, and relief under the Convention Against Torture. Exercising jurisdiction

under 28 U.S.C. § 1252(a), we deny Singh’s petition.

                                           I

      Singh is a native and citizen of India who illegally entered the United States

without valid immigration papers on or about February 10, 2017. He applied for

asylum, withholding of removal, and relief under the Convention Against Torture on

the basis that he feared returning to India. He claimed his membership in a Sikh

political party, the Mann Party, placed him in danger from the rival Sikh political

group, the Badal Party. Singh alleged that members of the Badal Party attacked him

on two occasions.

      On April 6, 2017, the Department of Homeland Security issued Singh a Notice

to Appear (“NTA”) charging him with removability. Singh appeared before the

immigration judge (“IJ”) for the first time on June 20, 2017, at a scheduled master

calendar hearing. Singh sought a continuance of his merits hearing so he could

obtain counsel. The IJ granted him a continuance to July 5, 2017. On July 5, Singh

told the IJ his uncle was in contact with an attorney and he needed another week.

The IJ granted a second continuance to July 19, 2017, but warned Singh that if he did

not have an attorney by that date he would be required to represent himself. Singh

stated that he understood.

      On July 19, Singh told the IJ he had retained counsel, but requested a third

continuance. Counsel was not present at the hearing. Singh admitted to the factual

allegations in the NTA. He also filed his I-589 form to apply for asylum,

                                           2
withholding of removal, and protection under the Convention Against Torture. The

IJ granted Singh a third continuance to August 16, 2017. On August 16, Singh again

appeared without counsel and asked for more time. The IJ denied further

continuances because Singh had two months to obtain counsel, and set the merits

hearing for August 30, 2017. The IJ informed Singh that all of his supporting

documents needed to be submitted to the court before the hearing.

      At the August 30 hearing, Singh said his uncle had found an attorney—Shiv

Kapoor with an office in San Antonio, Texas—to represent him. Singh told the IJ he

had been unable to contact Kapoor for the last fifteen days because of bad weather,

an apparent reference to Hurricane Harvey, which had recently made landfall in

Houston, Texas. Singh asked for a one-month continuance. The IJ took judicial

notice that San Antonio had not been impacted by Hurricane Harvey, and attempted

to call Kapoor’s office, but the call went to voice mail. The IJ denied the

continuance and proceeded to take Singh’s testimony.

      Singh testified he was first attacked by Badal Party members when he was

hanging Mann Party posters by a roadside. He said after a vehicle with Badal Party

posters approached him, four men in yellow turbans came out, attacked him, and told

him to leave the Mann Party. The IJ asked if he had been hospitalized for his

injuries. Singh answered affirmatively, but when the IJ asked if he had any

supporting documentation, Singh changed his answer and said he received treatment

from a village doctor but had no evidence. Later in the hearing, when the IJ asked

why he could not safely return to India, Singh stated for the first time that his

                                            3
attackers took his personal identification information and could find and attack him

anywhere in India.

      Singh testified the second attack happened when he was riding his motorcycle.

He said a car stopped next to his motorcycle, someone got ahold of the motorcycle

handle, he swerved, and the car hit his motorcycle. He said he fell and people came

and started hitting him with hockey sticks, breaking his ankle. Singh stated the

attackers threatened to kill him unless he left the Mann Party. He testified he was

hospitalized for his broken ankle and wore a cast. Although Singh did not provide

any documentation supporting the hospitalization, Singh stated he could get the

documents from his family in India if the IJ granted another continuance. The IJ

asked why he had not obtained this documentation during the preceding months,

noting that Singh’s father had previously submitted other documents on Singh’s

behalf. Singh stated there was trouble in India.

      The IJ found that Singh did not testify credibly. In a detailed decision, the IJ

noted numerous vague answers, inconsistencies, and omissions in Singh’s testimony.

The IJ noted that Singh gave nonresponsive answers and had to be asked repeatedly

to answer certain questions. The IJ acknowledged that some inconsistencies were

minor, but noted that Singh often omitted key events. Considered cumulatively, the

IJ found Singh’s asylum application was not credible and that he had not met his

burden to establish eligibility for asylum. Because the burden of proof to establish

withholding of removal or relief under the Convention Against Torture is higher, the

IJ likewise denied relief under those provisions.

                                           4
      The BIA panel concluded the IJ’s denial of Singh’s request for a fourth

continuance did not deny him a fundamentally fair hearing. It also concluded the IJ’s

credibility determination was not clearly erroneous. The BIA thus affirmed the IJ’s

decision. Singh timely appealed.

                                           II

      Singh argues he was denied his right to a fundamentally fair hearing because

the IJ denied him a continuance to obtain counsel and the IJ’s adverse credibility

determination was not supported by substantial evidence.1 We have jurisdiction to

review legitimate constitutional claims. 8 U.S.C. § 1252(a)(2)(D).

      If a three-member panel of the BIA issues a decision, as in this case, “the BIA

opinion completely supersedes the IJ opinion for purposes of our review.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). But we may consult

the IJ’s decision if it provides a “more complete explanation” of the BIA panel’s

condensed description of the IJ’s credibility findings. Id. at 1204.

      “On an asylum claim, we review the BIA’s findings of fact under a substantial-

evidence standard,” in which “the BIA’s findings of fact are conclusive unless the

record demonstrates that any reasonable adjudicator would be compelled to conclude

to the contrary.” Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015)



      1
        Singh also argues for the first time on appeal that the IJ violated his due
process rights by denying his request at the hearing for additional time to provide
documentary evidence. We lack jurisdiction to review this claim because Singh did
not exhaust it before the BIA. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1236-
38 (10th Cir. 2010).
                                           5
(quotation omitted). “We review the BIA’s legal decisions de novo . . . .” Id.

(quotation omitted). “The BIA’s determination that an applicant was not eligible for

asylum must be upheld if supported by reasonable, substantial, and probative

evidence on the record considered as a whole . . . .” Id. (quotation omitted).

       “Credibility determinations are factual findings . . . subject to the substantial

evidence test.” Uanreroro, 443 F.3d at 1204. “There is no presumption of

credibility.” 8 U.S.C. §1158(b)(1)(B)(iii). In making credibility determinations, the

trier of fact should consider “the totality of the circumstances, and all relevant

factors,” which include the “demeanor, candor, or responsiveness of the applicant,”

“the consistency between the applicant’s . . . written and oral statements . . . , the

internal consistency of each such statement, [and] the consistency of such statements

with other evidence of record.” Id. Inconsistencies do not have to go to the heart of

the applicant’s claim, or to any relevant factor. Id. “Because an alien’s testimony

alone may support an application for withholding of removal or asylum, the IJ must

give specific, cogent reasons for disbelieving it.” Sviridov v. Ashcroft, 358 F.3d 722,

727 (10th Cir. 2004) (quotation omitted).

       “Because aliens do not have a constitutional right to enter or remain in the

United States, the only protections afforded are the minimal procedural due process

rights for an opportunity to be heard at a meaningful time and in a meaningful

manner.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009)

(quotation omitted). To establish a due process violation based on an alleged defect

in a removal hearing, an alien must show that the lack of representation caused

                                            6
prejudice that “implicates the fundamental fairness of the proceeding.” Michelson v.

INS, 897 F.2d 465, 468 (10th Cir. 1990). “To prevail on a due process claim, an

alien must establish not only error, but prejudice.” Alzainati v. Holder, 568 F.3d

844, 851 (10th Cir. 2009).

       We conclude the IJ did not violate Singh’s due process rights by refusing to

continue his case for a fourth time after giving him two months to find counsel. The

IJ complied with regulatory requirements by advising Singh of his right to obtain

counsel and providing him with a list of free or reduced-cost legal services that were

available to him, and by granting him several continuances to obtain an attorney and

the documents he felt were relevant to his claims for relief. See 8 C.F.R.

§ 1240.10(a). The IJ cautioned Singh multiple times that if he did not obtain counsel,

he would have to represent himself. And there is no Sixth Amendment right to

counsel in removal proceedings. United States v. Rangel de Aguilar, 308 F.3d 1134,

1138 (10th Cir. 2002). Singh was able to obtain counsel for his bond hearing. He

never explained his failure to obtain counsel for his merits hearing, other than a

vague and unsupported assertion that bad weather prevented him from contacting an

attorney. Singh’s own failure to obtain counsel does not call into question the

fundamental fairness of his removal proceedings.

       We also conclude that the BIA’s credibility findings are supported by

substantial evidence. Singh challenges the BIA’s example that he failed to disclose

that his first attackers took his identification papers. In his credible-fear interview,

Singh did not say that the first attackers took his identification papers, nor did he

                                            7
mention this when describing the attack during direct testimony at his merits hearing.

Not until later, when the IJ asked why he could not return to another part of India, did

Singh say that his attackers rummaged through his pockets and took his identification

papers. The BIA noted this as an omission. Singh argues this is not supported by the

record because he stated during his credible-fear interview that the Badal Party had

his “id card” and could find him. The BIA accurately stated, however, that Singh

omitted the detail that the attackers rummaged through his pockets and took his

papers when he described the attack. The BIA’s characterization of Singh’s omission

is supported by the record.2

      Singh asserts he did not give vague answers to the IJ’s questions about how

many members were in the Mann Party and whether he worked for the Mann Party

year-round. We disagree. The BIA’s characterization of Singh’s responses to these

questions as vague and non-responsive is supported by the record. Singh also argues

his accounts of the second attack at the merits and credible-fear hearings were

consistent. But we conclude the BIA’s characterization of his differing versions as

inconsistent is supported by the record, which shows Singh provided two conflicting

accounts of the way in which his attackers separated him from his motorcycle.

      A reasonable adjudicator would not be compelled to find Singh credible

because the multiple inconsistencies and vague or nonresponsive answers identified


      2
        Singh challenges several other examples the IJ gave of his inconsistent,
vague, or nonresponsive answers. But we need only address Singh’s challenges to
the examples given by the BIA, because the BIA’s decision supersedes the IJ’s
decision. Uanreroro, 443 F.3d at 1203.
                                           8
by the BIA are supported by the record. As such, we will not reverse the BIA’s

credibility determination. See Htun v. Lynch, 818 F.3d 1111, 1119 (10th Cir. 2016)

(holding we can reverse the BIA’s findings of fact under the asylum substantial-

evidence test only if “any reasonable adjudicator would be compelled to conclude to

the contrary” (quotation omitted)).

                                         III

      Petition DENIED.


                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




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