     17-741
     Singh v. Sessions
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A205 422 053
                              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 12th day of October, two thousand eighteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   SARVAN SINGH,
14            Petitioner,
15
16                       v.                                      17-741
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Anas J. Ahmed, Pannun The Firm,
24                                       P.C., Jackson Heights, NY.
25
26   FOR RESPONDENT:                     Chad A. Readler, Principal Deputy
27                                       Assistant Attorney General;
28                                       Brianne Whelan Cohen, Senior
29                                       Litigation Counsel; Mona Maria
30                                       Yousif, Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       Washington, DC.
34
 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 Sarvan Singh, a native and citizen of India,

 6   seeks review of a March 3, 2017, decision of the BIA affirming

 7   a February 12, 2016, decision of an Immigration Judge (“IJ”)

 8   denying    Singh’s   application       for   asylum,   withholding   of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Sarvan Singh, No. A 205 422 053 (B.I.A. Mar.

11   3, 2017), aff’g No. A 205 422 053 (Immig. Ct. N.Y. City Feb.

12   12, 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   both the BIA’s and the IJ’s decisions.           See Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

17   The standards 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   66 (2d Cir. 2008) (per curiam) (applying substantial

20   evidence standard to credibility rulings).

21       In making a credibility determination, the agency must

22   “consider[] the totality of the circumstances” and may base


                                        2
1    a finding on the applicant’s “demeanor, candor, or

2    responsiveness, the inherent plausibility of the

3    applicant’s . . . account,” inconsistencies in the

4    applicant’s statements or between his statements and other

5    evidence, and “any other relevant factor.”    8 U.S.C.

6    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 164,

7    166-67.   “We defer . . . to an IJ’s credibility

8    determination unless, from the totality of the

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

10   could make such an adverse credibility ruling.”    Xiu Xia

11   Lin, 534 F.3d at 167.    The inconsistencies among Singh’s

12   statements and his lack of reliable corroboration provide

13   substantial evidence for the adverse credibility

14   determination.

15       As an initial matter, Singh contends that the agency

16   erred in relying on his border interview to assess his

17   credibility.     An IJ may rely on statements made at a border

18   interview provided that the interview record is reliable.

19   Ming Zhang v. Holder, 585 F.3d 715, 721 (2d Cir. 2009).      The

20   agency reasonably concluded that the record of Singh’s border

21   interview was sufficiently reliable: (1) the record appears

22   to be a verbatim account of the questions asked and Singh’s


                                     3
1    responses;      (2)    the   interviewer       asked    for    details     about

2    Singh’s claim of past harm and his political activities;

3    (3) Singh       answered     all    questions     posed;      and   (4)    Singh

4    confirmed he understood the Punjabi translator.                     See id. at

5    721-22; Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d

6    Cir. 2004).

7        The     inconsistencies         among     Singh’s    statements       at   the

8    border    interview,       his     credible    fear     interview,    and      his

9    hearing provide substantial evidence for the agency’s adverse

10   credibility determination because they relate to Singh’s

11   level of political activity and his allegations of past harm.

12   See Xiu Xia Lin, 534 F.3d at 163-64; Xian Tuan Ye v. Dep’t of

13   Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (concluding

14   that a material inconsistency concerning alleged mistreatment

15   that formed the basis of the asylum claim was substantial

16   evidence for an adverse credibility determination).                       First,

17   Singh stated at his border interview that he was targeted

18   because    of    his   father’s      affiliation       with   the   party      and

19   confirmed that he knew nothing about the Shiromani Akali Dal

20   Amritsar Party.        But he stated at his credible fear interview

21   that he spent several months putting up posters at the party’s

22   rallies.        And at his hearing, Singh did not mention the


                                            4
1    posters,   but   testified     to       attending   rallies   where   he

2    “raise[d] slogans against [the] Congress Party” and served

3    food to participants.        Second, Singh stated at his border

4    interview that the police beat him five or six times, but at

5    both his credible fear interview and hearing, he recounted

6    only two incidents of police violence.

7        Singh’s varied explanations for the inconsistencies were

8    not compelling.    “A petitioner ‘must do more than offer a

9    plausible explanation for his inconsistent statements to

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

11   finder would be compelled to credit his testimony.’”                  Sk

12   Shahriair Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

13   (quoting Zhou Yun Zhang v. INS, 386 F.3d 66, 76 (2d Cir.

14   2004)).    The agency was not required to accept Singh’s

15   explanations for his misstatements at his border interview,

16   that he did not remember denying any political activity and

17   that he gave incorrect answers because he was “scared” and

18   his “mind . . . was not working correctly.”           See Yun-Zui Guan

19   v. Gonzales, 432 F.3d 391, 397 n.6 (2d Cir. 2005) (per curiam)

20   (explaining that nervousness during a border interview does

21   not preclude the agency from relying on interview statements

22   if the interview is otherwise reliable).               Nor was the IJ


                                         5
1    required to credit Singh’s attempt to differentiate between

2    a party member and a party supporter because he stated at the

3    border interview that he knew nothing about the Shiromani

4    Akali    Dal     Amritsar   Party   that       he     later     testified   to

5    supporting.      See Majidi, 430 F.3d at 80.

6          As these inconsistencies undermined Singh’s credibility,

7    the     agency    reasonably   relied          on     Singh’s    failure    to

8    rehabilitate      his   testimony       with        reliable    corroborating

9    evidence.      See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

10   Cir. 2007) (per curiam).       The IJ reasonably declined to give

11   weight to a non-contemporaneous medical record.                      Y.C. v.

12   Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer

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

14   applicant’s documentary evidence.”).                 Nor did the agency err

15   in declining to credit letters from Singh’s father and other

16   individuals in India because the authors were not available

17   for cross-examination and Singh’s father was an interested

18   party.    See id. at 334 (deferring to agency’s decision not

19   to credit letter from applicant’s spouse); In re H-L-H- & Z-

20   Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving diminished

21   weight to letters from relatives because they were from

22   interested witnesses not subject to cross-examination), rev’d


                                         6
1    on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

2    Cir. 2012).    And Singh did not corroborate the more recent

3    attack on his mother despite being in regular contact with

4    her.    See Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir.

5    2009) (noting that it is the alien’s burden to corroborate

6    “without prompting from the IJ”).

7           Given Singh’s inconsistent statements, which go to the

8    heart of his claim, and the lack of reliable corroboration,

9    the “totality of the circumstances” supports the agency’s

10   adverse credibility determination.    See Xiu Xia Lin, 534 F.3d

11   at 167.    The adverse credibility determination is dispositive

12   of asylum, withholding of removal, and CAT relief because all

13   three claims are based on the same factual predicate.      See

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

15          For the foregoing reasons, the petition for review is

16   DENIED.

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




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