                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 13 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DALWINDER SINGH,                                 No. 08-72610

              Petitioner,                        Agency No. A097-113-196

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                            Submitted December 9, 2011 **
                              San Francisco, California

Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***

       Dalwinder Singh, a native and citizen of India, petitions for review of the

decision of the Board of Immigration Appeals ("BIA"), affirming the immigration


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
judge's denial of Singh's applications for asylum, withholding of removal, and

protection under the Convention Against Torture. The IJ found that Singh was not

credible, his testimony having been contradicted not only by records from the

Department of Homeland Security ("DHS") but also by information contained in

Singh's own passport. Unable to believe Singh's testimony regarding matters

material to his claims, the IJ denied his applications for relief. The BIA affirmed,

finding no error in either the IJ's reliance on the DHS records or the IJ's adverse

credibility finding. Because the factual and procedural background is familiar to

the parties, we do not recount it here. We have jurisdiction pursuant to 8 U.S.C. §

1252(a)(1), and we deny the petition for review.

      Singh raises a number of issues on appeal, only two of which merit brief

discussion. First, Singh contends that the IJ improperly admitted unauthenticated

DHS computer printouts, thereby violating his due process rights. For due process

purposes, the test for admission of evidence in immigration proceedings is whether

the evidence is probative and its admission is fundamentally fair. Espinoza v. INS,

45 F.3d 308, 310 (9th Cir. 1995). Here, the printouts were clearly probative of

matters material to Singh's applications for relief, and admission of those printouts

did not make the proceedings fundamentally unfair. Indeed, Singh's counsel raised

no objection to their admission. Despite the lack of objection, the government



                                           2
proffered a foundation for admission of the printouts. The IJ concluded from the

government's proffer and his own perusal of the evidence that the printouts were

what they purported to be, namely computer records prepared and maintained in

DHS's regular course of business. Singh offered neither evidence nor argument to

the contrary. Importantly, much of the information contained in the printouts was

corroborated by other evidence in the record. With or without the DHS printouts,

the outcome of the proceedings would likely have been the same.1 As found by the

BIA, the IJ's admission of—and reliance on—the DHS printouts did not constitute

due process error.

       Second, Singh contends that the IJ's adverse credibility finding is not

supported by the record. Because Singh filed his asylum application before the

May 2005 effective date of the REAL ID Act, we apply pre-REAL ID Act

standards. Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005). Under pre-

REAL ID Act law, credibility determinations are reviewed for substantial

evidence. Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010). We accord

deference to an IJ's credibility determination and will uphold an adverse credibility

finding unless the evidence compels a contrary result. Li v. Holder, 629 F.3d 1154,



       1
         Singh claims that his counsel was ineffective for failing to object to admission of
the DHS printouts. The BIA found—and we agree—that such claim fails for lack of
prejudice.
                                             3
1157 (9th Cir. 2011). "Major inconsistencies on issues material to [an] alien's

claim of persecution constitute substantial evidence supporting an adverse

credibility determination." Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).

      Here, the IJ based his adverse credibility finding in large part on

discrepancies in the evidence regarding Singh's whereabouts during the time of his

purported persecution in India. In particular, Singh's passport and DHS computer

printouts placed Singh in Panama when he claimed to have been in India. When

confronted with the contradictory evidence, Singh was unable to provide a

plausible explanation for the inconsistencies. Furthermore, having carefully

observed Singh when he was asked about the evidence placing him in Panama, the

IJ saw no shock or surprise and otherwise found "nothing in his demeanor . . . to

suggest that he was, in fact, telling the truth in his own testimony."

      Because Singh did not offer a reasonable and plausible explanation for the

discrepancies in the evidence, discrepancies that went to the heart of each of his

claims, the discrepancies constituted substantial evidence supporting the IJ's

adverse credibility finding. We must defer to the IJ's adverse credibility finding as

the record does not compel a contrary conclusion.

      PETITION DENIED.




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