     16-3551
     Singh v. Sessions
                                                                                   BIA
                                                                             Zagzoug, IJ
                                                                           A206 020 340
                              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 23rd day of February, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   JATINDER SINGH,
14            Petitioner,
15
16                       v.                                      16-3551
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Amy Nussbaum Gell, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; M. Jocelyn Lopez
27                                       Wright, Senior Litigation Counsel;
28                                       Lori B. Warlick, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of
31                                       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 Jatinder Singh, a native and citizen of India,

6    seeks review of a September 21, 2016, decision of the BIA

7    affirming a June 17, 2015, 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 206 020 340 (B.I.A.

11   Sept. 21, 2016), aff’g No. A 206 020 340 (Immig. Ct. N.Y.

12   City June 17, 2015).   We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and IJ’s decisions.    See Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The standards

17   of review are well established.    See 8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165

19   (2d Cir. 2008).

20       The agency may, “[c]onsidering the totality of the

21   circumstances,” base an adverse credibility determination

22   on “the consistency between the applicant’s or witness’s

23   written and oral statements . . . the internal consistency

                                    2
1    of each such statement, the consistency of such statements

2    with other evidence of record . . . and any inaccuracies or

3    falsehoods in such statements.”    8 U.S.C.

4    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.       “We

5    defer . . . to an IJ’s credibility determination unless . .

6    . it is plain that no reasonable fact-finder could make

7    such an adverse credibility ruling.”    Xiu Xia Lin, 534 F.3d

8    at 167.

9        Substantial evidence supports the agency’s conclusion

10   that Singh was not credible.   Significant inconsistencies

11   between Singh’s testimony and application on the one hand

12   and his statements to an asylum officer on the other

13   provide substantial evidence for the adverse credibility

14   determination.   8 U.S.C. § 1158(b)(1)(B)(iii); see Xian

15   Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d

16   Cir. 2006) (holding that material inconsistency relating to

17   central aspect of asylum claim provided substantial

18   evidence for adverse credibility determination).    During

19   his credible fear interview, Singh stated that police

20   officers threatened and beat him when he went to lodge a

21   complaint.   But he omitted this beating from his

22   application and direct testimony.   The agency reasonably

23   relied on this omission to assess Singh’s credibility.       See

                                    3
1    Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an

2    omission are . . . functionally equivalent” for credibility

3    purposes); Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir.

4    2009) (“Omissions that go to a heart of an applicant’s

5    claim can form the basis for an adverse credibility

6    determination.” (internal quotation marks and brackets

7    omitted)).   The agency was not compelled to accept Singh’s

8    explanation that he omitted the incident because the police

9    officers warned him against reporting it because that

10   explanation did not resolve why he omitted the episode from

11   his U.S. asylum application. See Majidi v. Gonzales, 430

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

13   offer a plausible explanation for his inconsistent

14   statements to secure relief; he must demonstrate that a

15   reasonable fact-finder would be compelled to credit his

16   testimony.” (internal quotation marks and citation

17   omitted)).

18       Singh’s credibility was further undermined by

19   additional inconsistencies between his own statements and

20   his supporting documentary evidence.   See 8 U.S.C. §

21   1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167 (reasoning

22   that “an IJ may rely on any inconsistency or omission in

23   making an adverse credibility determination” and upholding

                                   4
1    reliance on omissions and inconsistencies stemming from

2    letters).   Singh testified that his friend was shot in

3    January 2012; but his application, credible fear interview,

4    and an affidavit from a family friend reported that a

5    friend of Singh’s was shot by Congress Party workers before

6    Singh was attacked in December 2011.   When asked to

7    explain, Singh simply reiterated his testimony, thus, did

8    not resolve the inconsistency.    See Majidi, 430 F.3d at 80-

9    81.

10         In addition, Singh testified that he spent

11   approximately one week in the hospital after each of two

12   attacks by Congress Party members, but his written

13   statement mentions only one brief hospital visit after the

14   second attack.   See Ming Zhang, 585 F.3d at 726.    The IJ

15   reasonably gave diminished weight to Singh’s medical

16   records given that the initial copies were undated but the

17   originals contained dates.   See Shunfu Li v. Mukasey, 529

18   F.3d 141, 149 (2d Cir. 2008) (“afford[ing] IJs considerable

19   flexibility in determining the authenticity of . . .

20   documents from the totality of the evidence and in using

21   documents found to be authentic in making an overall

22   assessment of the credibility of a petitioner’s testimony

23   and, ultimately, of h[is] persecution claim.”).

                                   5
1        Finally, the agency reasonably relied on the lack of

2    objective, reliable documentary evidence to corroborate the

3    kidnapping of Singh’s son in India, and Singh’s political

4    affiliation.     See Biao Yang v. Gonzales, 496 F.3d 268, 273

5    (2d Cir. 2007) (“An applicant’s failure to corroborate his

6    or her testimony may bear on credibility, because the

7    absence of corroboration in general makes an applicant

8    unable to rehabilitate testimony that has already been

9    called into question.”).    The IJ did not err in giving

10   diminished weight to affidavits from Singh’s wife, mother,

11   friend, and family friend, because two of them were

12   interested witnesses, none was available for cross-

13   examination, and the documents relied solely on Singh’s

14   testimony for authenticity.     See Shunfu Li, 529 F.3d at

15   149; Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We

16   defer to the agency’s determination of the weight afforded

17   to an alien’s documentary evidence.”).

18       Given the omissions and inconsistencies, substantial

19   evidence supports the agency’s adverse credibility

20   determination.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian

21   Tuan Ye, 446 F.3d at 295-96.    Because Singh’s claims all

22   relied on his credibility, the adverse credibility

23   determination is dispositive of asylum, withholding of

                                     6
1    removal, and CAT relief.    Paul v. Gonzales, 444 F.3d 148,

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

3        For the foregoing reasons, the petition for review is

4    DENIED.    As we have completed our review, any stay of removal

5    that the Court previously granted in this petition is VACATED,

6    and any pending motion for a stay of removal in this petition

7    is DISMISSED as moot.    Any pending request for oral argument

8    in this petition is DENIED in accordance with Federal Rule of

9    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

11                       FOR THE COURT:
12                       Catherine O’Hagan Wolfe, Clerk of Court




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