         11-2314-ag
         Singh v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A072 403 979
                            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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       JASBIR SINGH,
14                Petitioner,
15
16                         v.                                   11-2314-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Richard W. Chen, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Leslie McKay, Assistant
27                                     Director; M. Jocelyn Lopez Wright,
28                                     Senior Litigation Counsel, Office of
29                                     Immigration Litigation, U.S.
30                                     Department of Justice, Washington,
31                                     D.C.
 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 Jasbir Singh, a native and citizen of India,

 6   seeks review of the May 9, 2011, decision of the BIA

 7   reversing the December 4, 2007, decision of Immigration

 8   Judge (“IJ”) Robert Weisel, granting Jasbir Singh asylum.

 9   In re Jasbir Singh, No. A072 403 979 (B.I.A. May 9, 2011),

10   rev’g No. A072 403 979 (Immig. Ct. N.Y. City Dec. 4, 2007).

11   We assume the parties’ familiarity with the underlying facts

12   and procedural history of this case.

13       Because the BIA rejected the decision of the IJ in its

14   entirety, we have reviewed only the decision of the BIA.

15   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We

16   review the agency’s factual findings, including adverse

17   credibility findings, under the substantial evidence

18   standard, treating them as “conclusive unless any reasonable

19   adjudicator would be compelled to conclude to the contrary.”

20   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

21   534 F.3d 162, 165-66 (2d Cir. 2008).   We review questions of

22   law de novo.   Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.


                                   2
 1   2008).       For asylum applications governed by the REAL ID Act,

 2   such as the application in this case, the agency may,

 3   considering the totality of the circumstances, base a

 4   credibility finding on, inter alia, inaccuracies or

 5   falsehoods in an applicant’s statements without regard to

 6   whether they go “to the heart of the applicant’s claim.”

 7   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

 8   64.

 9         The BIA did not err in concluding that the IJ’s factual

10   findings that formed the basis for his positive credibility

11   determination were clearly erroneous and the BIA’s adverse

12   credibility determination is supported by substantial

13   evidence.*      See 8 C.F.R. § 1003.1(d)(3)(i); see also

14   Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (“A

15   finding is clearly erroneous when, although there is

16   evidence to support it, the reviewing court on the entire



              *
              Contrary to Singh’s contention, the BIA did not
       find that he knowingly filed a frivolous asylum
       application, but concluded only that he was not credible
       due to his filing of a fraudulent asylum application.
       See Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106,
       112-15 (2d Cir. 2006) (recognizing that a finding that an
       applicant knowingly filed a frivolous asylum application,
       which permanently forecloses the applicant from certain
       immigration benefits, “does not flow automatically from
       an adverse credibility determination”) (citations
       omitted).
                                       3
 1   evidence is left with the definite and firm conviction that

 2   a mistake has been committed.”) (internal quotation marks

 3   and citations omitted).    In this case, the BIA reasonably

 4   concluded that the IJ committed clear error in finding that

 5   the “record lack[ed] any evidence that [Singh’s] . . .

 6   asylum application was fraudulent,” because there were

 7   striking similarities in the description of incidents of

 8   persecution between Singh’s March 2002 asylum application,

 9   which was prepared by individuals who were subsequently

10   convicted of conspiracy to submit false asylum applications,

11   and an application filed in July 2001 by the same

12   individuals.     See Anderson, 470 U.S. at 573.   Moreover, the

13   similarities supported the BIA’s adverse credibility

14   determination.     See Mei Chai Ye v. U.S. Dep’t of Justice,

15   489 F.3d 517, 524 (2d Cir. 2007)(discussing similarities in

16   the “inter-proceeding” context, i.e., where similar

17   documents are produced by aliens in different removal

18   proceedings and concluding that “striking similarities

19   between affidavits are an indication that the statements are

20   ‘canned’” and provide a basis for deeming an applicant’s

21   general credibility undermined)(citation omitted); see also

22   Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58

23   (2d Cir. 2006) (concluding that the submission of a

                                     4
 1   fraudulent document in support of an asylum application

 2   alone may constitute substantial evidence to support an

 3   adverse credibility finding).

 4       Furthermore, we find no merit to Singh’s arguments that

 5   the agency violated the Federal Rules of Evidence and his

 6   due process rights by admitting into the record, and relying

 7   on, a Termination Notice prepared by an asylum officer who

 8   did not appear at his hearing and by allowing a government

 9   witness to testify without timely serving a proposed witness

10   list.   There is no merit to Singh’s argument that the agency

11   violated the Federal Rules of Evidence in his proceedings

12   because “the Federal Rules of Evidence do not apply in

13   removal proceedings; rather, ‘[e]vidence is admissible

14   provided that it does not violate the alien’s right to due

15   process of law.’”   Aslam v. Mukasey, 537 F.3d 110, 114 (2d

16   Cir. 2008) (quoting Zhen Nan Lin v. U.S. Dep’t of Justice,

17   459 F.3d 255, 268 (2d Cir. 2006)).   In the immigration

18   context, “[t]he standard for due process is [] satisfied . .

19   . if the evidence ‘is probative and its use is fundamentally

20   fair,’ fairness in this context being ‘closely related to

21   the reliability and trustworthiness of the evidence.’” Id.

22   (quoting Zhen Nan Lin, 459 F.3d at 268); see also Li Hua Lin

23   v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006)

                                     5
 1   (providing that due process requires that an applicant

 2   receive a full and fair hearing that provides a meaningful

 3   opportunity to be heard).   If an applicant shows that his

 4   hearing was not fair based on the submission of evidence, he

 5   also must demonstrate that he was prejudiced by the error.

 6   See Aslam, 537 F.3d   at 115; see also Garcia-Villeda v.

 7   Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

 8       Here, the agency did not violate Singh’s due process

 9   rights by admitting and relying on the Termination Notice

10   because the document did not raise any reliability concerns

11   and Singh did not challenge the reliability of the notice

12   before the IJ despite ample opportunity to do so.     See

13   Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996)

14   (recognizing that “records made by public officials in the

15   ordinary course of their duties . . . evidence strong

16   indicia of reliability”).   Additionally, contrary to Singh’s

17   argument regarding a government witness’s testimony, the

18   government provided almost eight months’ prior notice of its

19   intent to produce a fact witness as to the criminal

20   enterprise of the preparers of Singh’s asylum application,

21   and Singh was provided an opportunity to question the

22   government witness regarding the reliability of his

23   testimony.   See Li Hua Lin, 453 F.3d at 104-05; Aslam, 537

                                   6
 1   F.3d at 115.    Finally, Singh cannot demonstrate that he was

 2   prejudiced by the admission of either the Termination Notice

 3   or the government witness’s testimony because, even without

 4   that evidence, the striking similarities between his

 5   application and another prepared by the same persons alone

 6   demonstrated clear error in the IJ’s decision and supported

 7   the conclusion that his asylum application was fraudulent.

 8   See Mei Chai Ye, 489 F.3d at 526; see also Aslam, 537 F.3d

 9   at 115; Garcia-Villeda, 531 F.3d at 149.

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, petitioner’s

12   pending motions for a stay of removal in this petition is

13   DISMISSED as moot.    Any pending request for oral argument in

14   this petition is DENIED in accordance with Federal Rule of

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

16   34.1(b).

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19
20




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