     17-819
     Singh v. Barr
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A206 633 497
                          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 25th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JAGJIT SINGH,
14            Petitioner,
15
16                   v.                                          17-819
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Anas Jameel Ahmed,
24                                    Jackson Heights, NY
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Jessica E.
28                                    Burns, Senior Litigation Counsel;
29                                    Scott M. Marconda, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, Washington, 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 Jagjit Singh, a native and citizen of India,

6    seeks review of the BIA’s affirmance of an Immigration Judge’s

7    (“IJ”) denial of Singh’s application for asylum, withholding

8    of removal, and relief under the Convention Against Torture

9    (“CAT”).     In re Jagjit Singh, No. A206 633 497 (B.I.A. Feb.

10   23, 2017), aff’g No. A206 633 497 (Immig. Ct. N.Y. City July

11   12, 2016).

12       Under the circumstances, we have reviewed both the BIA’s

13   and IJ’s decisions, see Yun-Zui Guan v. Gonzales, 432 F.3d

14   391, 394 (2d Cir. 2005) (“Where, as here, the BIA agrees with

15   the IJ’s conclusion that a petitioner is not credible and,

16   without rejecting any of the IJ’s grounds for decision,

17   emphasizes    particular   aspects   of   that   decision,    we   will

18   review both the BIA’s and IJ’s opinions . . . including the

19   portions not explicitly discussed by the BIA.”), applying

20   well-established     standards   of       review,   see   8    U.S.C.

21   § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

22   Cir. 2018) (reviewing adverse credibility determination for


                                      2
1    substantial evidence).     In so doing, we assume the parties’

2    familiarity with the underlying facts and procedural history

3    of this case, which we reference only as necessary to explain

4    our decision to deny the petition.

5         “[A] trier of fact may base a credibility determination

6    on the demeanor, candor, or responsiveness of the applicant

7    or witness, the inherent plausibility of the applicant’s or

8    witness’s account, the consistency between the applicant’s or

9    witness’s written and oral statements . . . , the internal

10   consistency of each such statement, [and] the consistency of

11   such statements with other evidence of record . . ., without

12   regard to whether an inconsistency, inaccuracy, or falsehood

13   goes to the heart of the applicant’s claim . . . .”     8 U.S.C.

14   § 1158(b)(1)(B)(iii).    “We defer . . . to an IJ’s credibility

15   determination,   unless,     from    the   totality     of   the

16   circumstances, it is plain that no reasonable fact-finder

17   could make such an adverse credibility ruling.”       Xiu Xia Lin

18   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

19   Gao, 891 F.3d at 76.     Applying these standards, we conclude

20   that substantial evidence supports the agency’s determination

21   that Singh was not credible.

22


                                     3
1          First,    Singh’s   hearing     testimony     differed    from   his

2    credible fear interview in nontrivial ways.               For example,

3    during his credible fear interview, Singh stated that he only

4    suspected, but was not certain, who had attacked him because

5    his attackers had hidden their faces.              By contrast, at his

6    hearing two years later, Singh testified that he was certain

7    that his attackers were members of the Congress Party because

8    “they were wearing clothes having symbol of Congress party on

9    it.” Certified Record on Appeal at 84.             A witness’s “silence

10   on particular facts depends on whether those facts are ones

11   the witness would reasonably have been expected to disclose.”

12   Hong Fei Gao, 891 F.3d at 78. Here, Singh was silent during

13   his   interview     as     to    facts    highly     relevant    to    his

14   identification of his assailants as persons acting on a

15   protected ground.        The agency, therefore, reasonably relied

16   on this omission to find Singh not credible.             See Xian Tuan

17   Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

18   (holding that “material inconsistency in an aspect of [the]

19   story that served as an example of the very persecution from

20   which [petitioner] sought asylum . . . afforded substantial

21   evidence   to     support       the   adverse   credibility     finding”

22   (internal citation and quotation marks omitted)).


                                           4
1           Insofar as Singh faults the agency for relying on notes

2    of his credible fear interview, we are not persuaded.                  “Where

3    the record of a credible fear interview displays the hallmarks

4    of   reliability,    it    appropriately          can   be   considered     in

5    assessing an alien’s credibility.”            Ming Zhang v. Holder, 585

6    F.3d 715, 725 (2d Cir. 2009).              The notes in question meet

7    this     standard:        they   are         typewritten,          organized,

8    contemporaneous, and summarize the questions asked and the

9    answers given.       See id. (finding notes of credible fear

10   interview reliable because “proceeding was memorialized in a

11   typewritten    document     setting       forth   the   questions     put   to

12   petitioner as well as her responses”).

13          Additional    inconsistencies          reinforce      the    agency’s

14   adverse credibility determination. Singh testified that he

15   had never been arrested in India, but a letter he submitted

16   on the letterhead of his political party stated the opposite.

17   He also claimed that he had not been interested in politics

18   before 2009 (when he was 19), but an affidavit purporting to

19   be from his neighbor stated that he had been interested in

20   politics since childhood.        Singh was unable to explain any

21   of these discrepancies when given the opportunity. Cf.                    Ming

22   Shi Xue v. BIA, 439 F.3d 111, 118 (2d Cir. 2006) (holding


                                           5
1    that petitioner must be given “opportunity to address and

2    explain” inconsistencies that are “not so dramatic as to be

3    self-evident”).

4         We   also   discern   no    reversible   error   in    the     IJ’s

5    determination that some of Singh’s testimony was inherently

6    implausible.     Singh claimed that he would face political

7    persecution if he returned to India because the Congress Party

8    would find him no matter his location in the country.             As the

9    IJ noted, this is inconsistent with Singh’s testimony that he

10   remained unharmed in his own home for a year after the second

11   assault, even though the Congress Party knew where he lived.

12   See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007)

13   (“[A]n IJ is entitled to consider whether the applicant’s

14   story     is      inherently       implausible.”);      8         U.S.C.

15   § 1158(b)(1)(B)(iii).

16        Finally, Singh complains that the agency erred by relying

17   on his inconsistencies because they were “minor.”           The REAL

18   ID Act permits the agency to rely on “any” inconsistency, but

19   the inconsistency must be considered in light of the totality

20   of the circumstances, and “bear a legitimate nexus” to the

21   finding of adverse credibility.          Hong Fei Gao, 891 F.3d at

22   77   (internal   quotation      marks   omitted).     Applying     this


                                        6
1    standard,   we   identify   no   error.   Singh’s   application   was

2    premised on two instances of persecution that occurred in the

3    relatively recent past, and the inconsistencies that the

4    agency relied on, particularly Singh’s initial silence as to

5    how he identified his attackers, went to the core of Singh’s

6    political persecution claim.

7        Accordingly, the totality of the circumstances, showing

8    inconsistencies and implausibilities, supports the agency’s

9    adverse credibility determination.        This adverse credibility

10   determination is dispositive of Singh’s asylum, withholding

11   of removal, and CAT claims because all three are based on the

12   same factual predicate.     See Paul v. Gonzales, 444 F.3d 148,

13   156-57 (2d Cir. 2006).

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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