     17-272
     Singh v. Sessions
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A205 069 193
                              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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 20th day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            PETER W. HALL,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   LAKWINDER SINGH,
15            Petitioner,
16
17                       v.                                      17-272
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Jaspreet Singh, Law Office of
25                                       Jaspreet Singh, Jackson Heights,
26                                       NY.
27
28   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
29                                       Attorney General; Stephen J.
30                                       Flynn, Assistant Director; Ann
31                                       Welhaf, Sergio Sarkany, Trial
1                                  Attorneys, Office of Immigration
2                                  Litigation, United States
3                                  Department of Justice, Washington,
4                                  DC.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioner Lakwinder Singh, a native and citizen of

11   India, seeks review of a December 27, 2016 decision of the

12   BIA affirming a February 29, 2016 decision of an Immigration

13   Judge   (“IJ”)     denying    Singh’s       application     for    asylum,

14   withholding   of   removal,    and       relief   under   the   Convention

15   Against Torture (“CAT”).       In re Lakwinder Singh, No. A 205

16   069 193 (B.I.A. Dec. 27, 2016), aff’g No. A 205 069 193

17   (Immig. Ct. N.Y. City Feb. 29, 2016).             We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

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

21   summary denial of Singh’s petition for review.                     Summary

22   denial is warranted only if a petition is frivolous, Pillay

23   v. INS, 45 F.3d 14, 17 (2d Cir. 1995), and Singh has filed

                                          2
1    his merits brief.           Accordingly, we treat the Government’s

2    motion as a response to that brief, and deny the petition.

3         We have “review[ed] the IJ’s decision as the final agency

4    determination.”          Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d

5    Cir. 2008).            The applicable standards of review are well

 6   established.           See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

 7   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).                 “Considering

 8   the totality of the circumstances, . . . a trier of fact may

 9   base a credibility determination on the demeanor, candor, or

10   responsiveness of the applicant[,] . . . the consistency

11   between     the    applicant’s     or       witness’s   written   and   oral

12   statements[,] . . . the internal consistency of each such

13   statement, the consistency of such statements with other

14   evidence of record . . . and any inaccuracies or falsehoods

15   in   such     statements,        without       regard    to   whether    an

16   inconsistency, inaccuracy, or falsehood goes to the heart of

17   the applicant’s claim, or any other relevant factor.”                      8

18   U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

19   at 163-64.

20        The    agency’s        adverse     credibility     determination     is

21   supported         by     substantial        evidence.   In    making    its
                                             3
 1   determination,          the     agency         reasonably            relied   on

 2   inconsistencies and omissions in Singh’s various statements.

 3   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

 4   166-67 & n.3 (“An inconsistency and an omission are . . .

 5   functionally equivalent.”).             First, as the IJ found, Singh

 6   testified that he never sought to travel to the United States

 7   before 2010, when he allegedly was mistreated by members of

 8   the Congress Party, but the Government produced documentation

 9   showing that he sought a visa in 2009.                    The IJ reasonably

10   concluded     that    this    inconsistency         raised      “a    reasonable

11   inference that [Singh] hoped that his application (and the

12   fact that it was made before his alleged persecution) would

13   go unnoticed.”       Special App’x 39.         See Xiu Xia Lin, 534 F.3d

14   at    164   (holding     that     IJ    may    “rely      on    omissions     and

15   inconsistencies        that     do     not    directly         relate    to   the

16   applicant’s claim of persecution as long as the totality of

17   the   circumstances       establish         that   the    applicant      is   not

18   credible”).

19         Second, we find no error in the IJ’s reliance on Singh’s

20   statement    at   his    border      interview     that    he     had   suffered

21   constant police harassment as inconsistent with his later
                                             4
 1   statement that he suffered abuse at the hands of Congress

 2   party     members.        The     interview     record    was     sufficiently

 3   reliable: it was created in the normal course of business;

 4   the interviewer explained the purpose of the interview; the

 5   interview was conducted through an interpreter; Singh was

 6   advised    of    his     rights    and    placed   under    oath;       and   the

 7   interviewer asked Singh both an open-ended question about his

 8   fear of returning to India and whether he wished to make any

 9   additional statements.            Although we have cautioned against

10   placing    too    much    emphasis       on   omissions    from    an   initial

11   interview       because    someone       fleeing    persecution         may    be

12   apprehensive of authorities or feel coerced or threatened,

13   Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005), the

14   record contains no evidence of such circumstances here. The

15   inconsistency in Singh’s statements—his later testimony that

16   he was threatened and beaten by Congress Party members, and

17   his interview statement that he had been harassed by the

18   police—provides substantial support for the IJ’s credibility

19   determination.         See Xian Tuan Ye v. Dep’t of Homeland Sec.,

20   446 F.3d 289, 295 (2d Cir. 2006) (holding that material

21   inconsistency relating to central aspect of asylum claim
                                              5
1    provided     substantial     evidence      for   adverse    credibility

2    determination).     The agency was not compelled to accept

3    Singh’s explanations that he was nervous and that the Congress

 4   Party controlled the police, because these explanations did

 5   not answer why he would first identify “the police” as his

 6   harassers when all of his subsequent statements mentioned

 7   only Congress Party members.             See Majidi v. Gonzales, 430

 8   F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

 9   offer a plausible explanation for his inconsistent statements

10   to secure relief; he must demonstrate that a reasonable fact-

11   finder would be compelled to credit his testimony.” (internal

12   quotation marks and citation omitted)); Ming Zhang v. Holder,

13   585   F.3d   715,   725-26    (2d       Cir.   2009)   (reasoning   that

14   applicant’s “mere recitation that he was nervous or felt

15   pressured during an airport interview will not automatically

16   prevent” the agency from relying on the interview).

17         Third, the IJ reasonably relied on Singh’s omission from

18   his asylum application of any mention of having sought medical

19   treatment.     See Xiu Xia Lin, 534 F.3d at 166 n.3.                Singh

20   testified that he sought treatment at a hospital after an

21   October 2010 attack, but his application was silent on this
                                         6
1    significant point, which would have reflected the gravity of

2    his injuries.    See Ming Zhang, 585 F.3d at 726.

3        In     addition    to   these   inconsistencies,       the    agency’s

4    adverse credibility determination was supported by the IJ’s

5    demeanor    finding.    That   finding     was   grounded    in   Singh’s

6    failure to provide any specific dates in his credible fear

7    interview or on cross-examination in his agency hearing,

8    despite    the   inclusion     of   such    details   in    his    asylum

 9   application and his direct testimony before the IJ.                 See 8

10   U.S.C. § 1158(b)(1)(B)(iii).            The IJ reasonably concluded

11   that Singh’s inconsistent memory of dates was an indication

12   that Singh may have been testifying from a script.                 See Li

13   Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

14   2006) (“We can be still more confident in our review of

15   observations about an applicant’s demeanor where, as here,

16   [the observations] are supported by specific examples of

17   inconsistent testimony.”).

18       Finally, the agency reasonably relied on Singh’s failure

19   to rehabilitate his testimony with corroborating evidence.

20   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

21   applicant’s failure to corroborate his or her testimony may
                                         7
1    bear on credibility, because the absence of corroboration in

2    general makes an applicant unable to rehabilitate testimony

3    that has already been called into question.”).                    The IJ did

4    not err in giving limited weight to Singh’s documentary

5    evidence, particularly since some of the affidavits that

6    Singh presented closely tracked the language of his personal

7    statement, thus calling into question their authorship.                   See

8    Y.C.    v.   Holder,   741   F.3d   324,      332    (2d   Cir.   2013)   (“We

9    generally defer to the agency's evaluation of the weight to

10   be afforded an applicant’s documentary evidence.”); Mei Chai

11   Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007)

12   (holding that “striking similarities between affidavits are

13   an indication that the statements are ‘canned’”).

14          These    inconsistencies         and         this    omission,      the

15   questionable corroborating evidence, and the IJ’s demeanor

16   finding provide substantial evidence for the agency’s adverse

17   credibility determination.          8 U.S.C. § 1158(b)(1)(B)(iii);

18   Xiu Xia Lin, 534 F.3d at 166-67.                    That determination is

19   dispositive of Singh’s claims for asylum, withholding of

20   removal, and CAT relief, because all three claims rest on the

21   same factual predicate.        See Paul v. Gonzales, 444 F.3d 148,
                                         8
1   156-57 (2d Cir. 2006).

2       For the foregoing reasons, the petition for review is

3   DENIED.   As we have completed our review, the Government’s

4   motion for summary denial is DENIED as moot.     Any pending

5   request for oral argument in this petition is DENIED in

6   accordance with Federal Rule of Appellate Procedure 34(a)(2),

7   and Second Circuit Local Rule 34.1(b).

8                               FOR THE COURT:
9                               Catherine O’Hagan Wolfe, Clerk




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