11-2557-ag
Singh v. Holder
                                                                                BIA
                                                                         Vomacka, IJ
                                                                        A076 846 720
                   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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Richard C. Lee United
States Courthouse, 141 Church Street, in the City of New
Haven, Connecticut, on the 25th day of May, two thousand
twelve.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         ROBERT D. SACK,
              Circuit Judges.
_____________________________________

HARDEV SINGH,
         Petitioner,

                  v.                                    11-2557-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________


FOR PETITIONER:                Hardev Singh, pro se, East Elmhurst,
                               New York.
FOR RESPONDENT:        Tony West, Assistant Attorney General;
                       Erica B. Miles, Senior Litigation
                       Counsel; Jesse Lloyd Busen, Trial
                       Attorney,    Office   of   Immigration
                       Litigation, United States Department
                       of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Petitioner Hardev Singh, a native and citizen of India,

seeks review of a May 26, 2011, order of the BIA, affirming

Immigration Judge (“IJ”) Alan A. Vomacka’s February 23, 2009,

denial of asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).     In re Hardev Singh, No.

A076 846 720 (B.I.A. May 26, 2011), aff’g No. A076 846 720

(Immig. Ct. N.Y. City Feb. 23, 2009).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA.     See Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

The applicable standards of review are well-established.    See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).



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I.    Due Process

      Notwithstanding Singh’s argument to the contrary, the

parties’     submission     of    supplemental         country    conditions

evidence on remand did not violate due process. See Burger v.

Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To establish a

violation of due process, an alien must show that [he] was

denied a full and fair opportunity to present [his] claims or

that the [INS] . . . otherwise deprived [him] of fundamental

fairness.”).      Singh appears to argue that the government

unfairly received two opportunities to rebut the presumption

of a well-founded fear of persecution.             However, because this

Court’s 2008 order determined only that the agency’s 1999

adverse     credibility   determination          was     not   supported    by

substantial evidence and remanded Singh’s case for further

proceedings, and the IJ’s 1999 decision did not contain an

alternative burden finding, Singh’s argument is not supported

by the record.      Cf. Matter of Patel, 16 I. & N. Dec. 600, 601

(B.I.A. 1978) (“[R]emand is effective for the stated purpose

and   for   consideration    of    any   and   all     matters    which    the

[immigration judge] deems appropriate in the exercise of his

administrative      discretion     or    which     are     brought   to    his

attention in compliance with the appropriate regulations.”).




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II. Fundamental Change in Circumstances

      As Singh demonstrated past persecution, he benefits from

the presumption of a well-founded fear of future persecution.

See   8     C.F.R.   §§     1208.13(b)(1)      (asylum),    1208.16(b)(1)(i)

(withholding of removal); see also Baba v. Holder, 569 F.3d

79, 86 (2d Cir. 2009) (“The law is clear that a showing of

past persecution shifts the burden to the government on the

question of the petitioner’s well-founded fear of future

persecution.”).            Once past persecution is established, the

burden      rests    firmly       with   the   government      to    rebut   this

presumption by showing, by a preponderance of the evidence,

either a “fundamental change in circumstances such that the

applicant’s life or freedom would not be threatened on account

of    any    of     the    five    [protected]       grounds   ...    upon    the

applicant’s removal” or the reasonable possibility of internal

relocation within the country of removal. Kone v. Holder, 596

F.3d 141, 147 (2d Cir. 2010).

      Although Singh argues that agency erred in finding that

the   government          had   established     a    fundamental     change   in

circumstances         by    misinterpreting         the   country    conditions

evidence in the record, the task of resolving conflicts in the

record evidence lies “largely within the discretion of the

agency.”      Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir.


                                         4
2008); see also Xiao Ji Chen v. Dep’t of Justice, 471 F.3d

315, 432 (2d Cir. 2006).

       In finding a fundamental change in circumstances, the BIA

reasonably noted that the 2007 State Department Report did not

reference any unlawful killings or mistreatment of Sikhs, and

that the State Department’s 2008 Issue Paper indicated that

the terrorist activities and widespread violence associated

with     the      Sikh         insurgency      and      the    government’s

counterinsurgency         have      ceased      since     Singh    suffered

persecution.       While Singh takes issue with the agency’s

conclusion that the country conditions evidence reflected a

fundamental change, where, as here, the agency’s determination

“is    tethered   to     the    evidentiary    record,    we   will   accord

deference to the finding.”              Siewe v. Gonzales, 480 F.3d 160,

168-69 (2d Cir. 2007).

       Singh’s    argument       that    the   agency    placed   excessive

reliance on Department of State reports, and his related

contention that agency ignored his contrary country conditions

evidence, are misplaced.                While we have noted that such

reports “are usually the result of estimable expertise and

earnestness of purpose, and they often provide a useful and

informative overview of conditions in the applicant’s home

country,” we have cautioned against placing excessive reliance
                                         5
on such reports because they “do not automatically discredit

contrary evidence presented by the applicant, and they are not

binding on the immigration court.” Tian-Yong Chen v. INS, 359

F.3d 121, 130 (2d Cir. 2004). Thus, although State Department

reports are “probative,” see Tu Lin v. Gonzales, 446 F.3d 395,

400 (2d Cir. 2006), the IJ “is obligated to consider [] any

contrary or countervailing evidence . . . presented, as well

as   the   particular   circumstances    of   the   applicant’s   case

demonstrated by testimony and other evidence,” Tian-Yong Chen,

359 F.3d at 130.        Rather than ignoring Singh’s contrary

evidence, the agency considered his evidence and found that it

was insufficient to counter the government’s evidence of

changed    country   conditions   or    independently   establish    a

well-founded fear of future persecution.            Accordingly, the

record does not indicate that the agency relied excessively on

the State Department reports or ignored any evidence.              See

Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming that the agency

“has taken into account all of the evidence before [it],

unless the record compellingly suggests otherwise”); see also

Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (noting

that the BIA is not required to expressly “parse or refute on

the record each individual argument or piece of evidence

offered by the petitioner”).
                                  6
    Although Singh also submitted letters from his mother and

a city councilor regarding the Indian government’s continued

interest in him, the BIA reasonably determined that this

evidence was entitled to diminished evidentiary weight because

the letters were in conflict with the country conditions

evidence in the record and were from interested witnesses not

subject to cross examination.       See Matter of H–L–H & Z–Y–Z–,

25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished

evidentiary weight to letters from interested witnesses not

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

Lin Huang v. Holder, ___ F.3d ___, 2012 WL 1003506 (2d Cir.

2012); see also Jian Hui Shao, 546 F.3d at 171.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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