     17-2977
     Singh v. Barr
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A206 088 347
                     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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 6th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JATINDER SINGH,
14                 Petitioner,
15            v.                                                 17-2977
16                                                               NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19                 Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                  Anas J. Ahmed, Pannun The Firm,
23                                    P.C., Jackson Heights, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
26                                    Attorney General; Leslie McKay,
27                                    Senior Litigation Counsel;
28                                    Christina P. Greer, Trial
29                                    Attorney, Office of Immigration
30                                    Litigation, United States
31                                    Department of Justice, Washington,
32                                    DC.
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

4    is DENIED.

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

6    seeks review of an August 24, 2017, decision of the BIA

7    affirming a December 1, 2016, decision of an Immigration Judge

8    (“IJ”) denying Singh’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Jatinder Singh, No. A 206 088 347 (B.I.A. Aug.

11   24, 2017), aff’g No. A 206 088 347 (Immig. Ct. N.Y. City Dec.

12   1, 2016).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14         Under the circumstances of this case, we have reviewed

15   the IJ’s decision minus the findings the BIA declined to rely

16   on.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

17   520, 522 (2d Cir. 2005).    The applicable standards of review

18   are well established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

19   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing

20   adverse    credibility   determination   under   a   substantial

21   evidence standard); Gjerjaj v. Holder, 691 F.3d 288, 292 (2d

                                     2
1    Cir. 2012) (reviewing constitutional claims de novo).

2    Adverse Credibility Determination

3        The governing REAL ID Act credibility standard provides

4    as follows:

 5       Considering the totality of the circumstances, and
 6       all relevant factors, a trier of fact may base a
 7       credibility determination on the demeanor, candor,
 8       or responsiveness of the applicant or witness, . .
 9       . the consistency between the applicant’s or
10       witness’s written and oral statements . . . , the
11       internal consistency of each such statement, the
12       consistency of such statements with other evidence
13       of record . . . , and any inaccuracies or falsehoods
14       in such statements, . . . or any other relevant
15       factor.
16
17   8 U.S.C. § 1158(b)(1)(B)(iii).       “We defer . . . to an IJ’s

18   credibility determination unless . . . it is plain that no

19   reasonable fact-finder could make such an adverse credibility

20   ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

21   2008); accord Hong Fei Gao, 891 F.3d at 76.             Substantial

22   evidence supports the agency’s determination that Singh’s

23   claim of persecution by the Congress Party on account of his

24   membership in the Akali Dal Mann political party was not

25   credible.

26       First,    Singh   has   waived   any   challenge   to   the   IJ’s

27   findings that his testimony was internally inconsistent and

                                      3
1    inconsistent with his medical report regarding his injuries,

2    that    there   were   discrepancies       between   his    testimony     and

3    application     regarding   who   accompanied        him   to    the    police

4    station, and that his demeanor undermined his credibility.

5    See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

6    (“Issues not sufficiently argued in the briefs are considered

7    waived and normally will not be addressed on appeal.”).

8           However, even if not waived, these findings provide

9    substantial       support       for       the   adverse          credibility

10   determination.         First,   Singh’s     testimony      was    internally

11   inconsistent and inconsistent with the medical certificate

12   regarding whether he sustained visible injuries.                       Second,

13   Singh’s application omits that a village council member and

14   his neighbor accompanied him to the police station.                    Third,

15   we defer to the IJ’s demeanor finding, which is supported by

16   Singh’s non-responsive answers on direct examination.                     See

17   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

18   2005) (granting deference to credibility findings based on an

19   applicant’s demeanor, “in recognition of the fact that the

20   IJ’s ability to observe the witness’s demeanor places her in

21   the best position to evaluate whether apparent problems in

                                           4
1    the witness’s testimony suggest a lack of credibility or,

2    rather, can be attributed to an innocent cause such as

3    difficulty understanding the question”); see also Tu Lin v.

4    Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness

5    is . . . one of the many outward signs a fact-finder may

6    consider in evaluating demeanor and in making an assessment

7    of credibility.”).

8        Additionally,     the     agency       reasonably      concluded     that

9    Singh’s    documentary   evidence         did      not   rehabilitate     his

10   credibility.    See Biao Yang v. Gonzales, 496 F.3d 268, 273

11   (2d Cir. 2007) (“An applicant’s failure to corroborate his .

12   . . testimony may bear on credibility, because the absence of

13   corroboration    in   general    makes       an     applicant   unable    to

14   rehabilitate testimony that has already been called into

15   question”).    It was reasonable for the IJ to give diminished

16   weight to Singh’s 2016 medical certificate because it was not

17   prepared contemporaneously with his 2013 hospitalization but

18   rather to support his application.              See Y.C. v. Holder, 741

19   F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the

20   agency’s   evaluation    of     the       weight    to   be   afforded     an

21   applicant’s documentary evidence”).             The IJ also did not err

                                           5
1    in giving diminished weight to affidavits from individuals

2    who were not subject to cross-examination.           See Matter of H-

3    L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving

4    diminished weight to letters from relatives because they were

5    from interested witnesses not subject to cross-examination),

6    rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d

7    130 (2d Cir. 2012).         Furthermore, as noted by the IJ, Singh

8    did not produce any country conditions evidence that Congress

9    Party members are targeting members of the Akali Dal Mann or

10   forcing them to join the Congress Party.

11         Given     the   discrepancies    among    Singh’s    testimony,

12   application, and medical document, Singh’s demeanor, and lack

13   of reliable corroboration, substantial evidence supports the

14   adverse       credibility     determination.         See    8    U.S.C.

15   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.             Because

16   Singh’s claims were all based on the same factual predicate,

17   the   adverse    credibility    determination   is    dispositive   of

18   asylum, withholding of removal, and CAT relief.            See Paul v.

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

20   Due Process Claim

21         Singh argues that his due process rights were violated

                                        6
1    by the attorney for the Department of Homeland Security

2    (“DHS”) interrupting his testimony during direct examination.

3    “To establish a violation of due process, an alien must show

4    that []he was denied a full and fair opportunity to present

5    h[is] claims,” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.

6    2007) (internal quotation marks and citations omitted), and

7    he must establish prejudice, Miller v. Mukasey, 539 F.3d 159,

8    164 (2d Cir. 2008).       Singh has shown neither.    He testified

9    at length at the hearing, and although the DHS attorney may

10   have interrupted the flow of his testimony, the interruptions

11   did   not   cause   the    non-responsive   answers   but   instead

12   highlighted them for the IJ and put Singh on notice of

13   problems with his testimony.

14         For the foregoing reasons, the petition for review is

15   DENIED.

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




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