     16-1558
     Singh-Kaur v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 812 998
                              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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   8th day of September, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C.WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   MANPREET SINGH-KAUR, AKA MANPREET
14   SINGH,
15            Petitioner,
16
17                     v.                                            16-1558
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Amy Nussbaum Gell, Gell & Gell, New
25                                         York, N.Y.
26
27   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
28                                         Attorney General; Paul Fiorino,
29                                         Senior Litigation Counsel; Judith
30                                         R. O’Sullivan, Trial Attorney,
31                                         Office of Immigration Litigation,
32                                         United States Department of
33                                         Justice, Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a Board

2    of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

3    ADJUDGED, AND DECREED that the petition for review is DENIED.

4         Petitioner Manpreet Singh-Kaur (“Singh”), a native and

5    citizen of India, seeks review of an April 26, 2016, decision

6    of the BIA affirming an April 22, 2015, decision of an Immigration

7    Judge (“IJ”) denying Singh’s application for asylum, withholding

8    of removal, and relief under the Convention Against Torture

9    (“CAT”). In re Manpreet Singh-Kaur, No. A200 812 998 (B.I.A.

10   Apr. 26, 2016), aff’g No. A200 812 998 (Immig. Ct. N.Y. City

11   Apr. 22, 2015).   We assume the parties’ familiarity with the

12   underlying facts and procedural history in this case.

13        Under the circumstances of this case, we have reviewed both

14   the IJ’s and the BIA’s opinions “for the sake of completeness.”

15   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

16   2006). The applicable standards of review are well established.

17   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

18   162, 165-66 (2d Cir. 2008)(per curiam).

19        The governing REAL ID Act credibility standard provides that

20   the agency must “[c]onsider[] the totality of the

21   circumstances,” and may base a credibility finding on an

22   applicant’s “demeanor, candor, or responsiveness,” the


                                     2
1    plausibility of his account, and inconsistencies in his or his

2    witness’s statements, “without regard to whether” they go “to

3    the heart of the applicant’s claim.” 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 . . . it

6    is plain that no reasonable fact-finder could make such an

7    adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

8    Further, “[a] petitioner must do more than offer a plausible

9    explanation for his inconsistent statements to secure relief;

10   he must demonstrate that a reasonable fact-finder would be

11   compelled to credit his testimony.” Majidi v. Gonzales, 430

12   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).

13   For the reasons that follow, we conclude that substantial

14   evidence supports the agency’s finding that Singh was not

15   credible.

16        First, the agency reasonably relied on the inconsistency

17   between Singh’s testimony and his friend’s letter regarding the

18   medical treatment Singh and his father received after the June

19   2010 attack.    See Xiu Xia Lin, 534 F.3d at 163-64.        Singh

20   testified that he was treated for five days and his father treated

21   for three days at a private hospital, which was located in a

22   nearby city outside their village. However, Singh’s friend’s

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1    letter stated: “We took . . . Singh and his father to Village

2    Doctor for treatment.    Doctor treated them for 2-3 weeks.”

3    Certified Administrative Record at 283.    When Singh was asked

4    about this discrepancy, he contradicted his prior testimony and

5    stated that he and his father were first brought to the village

6    doctor, but the seriousness of their injuries required them to

7    be taken to the hospital. Singh then explained that his friend

8    “must have meant to say that we were taken to the village doctor

9    and later on the treatment continued for two to three weeks.”

10   Id. at 216-17.     However, the IJ reasonably rejected this

11   explanation on the ground that the letter is best read to state

12   that Singh and his father were treated by the village doctor

13   for two to three weeks. See Majidi, 430 F.3d at 80. Although

14   Singh challenges the IJ’s interpretation of the letter, “[w]here

15   there are two permissible views of the evidence, the factfinder’s

16   choice between them cannot be clearly erroneous.”       Siewe v.

17   Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).

18       Second, the agency reasonably relied on the omission from

19   Singh’s parents’ affidavit whether Singh and his father received

20   medical treatment after the June 2010 attack.   See Xiu Xia Lin,

21   534 F.3d at 166 n.3 (“[a]n inconsistency and an omission

22   are . . . functionally equivalent” for credibility purposes).


                                    4
1    The affidavit from Singh’s parents, which otherwise describes

2    the June 2010 attack, omits any mention of the medical treatment

3    that Singh testified he and his father had received. When asked

4    about this omission, Singh responded that his parents must have

5    included it, and then stated that he did not know why a

6    description of the medical treatment had been omitted. The

 7   agency reasonably rejected these explanations. See Majidi, 430

 8   F.3d at 80.

 9       Third, the agency reasonably relied on the omission from

10   Singh’s Shiromani Akali Dal letter whether he was attacked for

11   his involvement with the party. See Xiu Xia Lin, 534 F.3d at

12   166-67 & 166 n.3. Although Singh testified that his party was

13   aware of the January and June 2010 attacks that formed the basis

14   of his asylum claim, his party’s letter omits any mention of

15   the attacks. When asked about this omission, Singh responded

16   that he only asked for a “party letter” to confirm his membership

17   in the party. The agency reasonably rejected this explanation

18   because the letter provided specific details about Singh and

19   the type of harm that could befall him in the future, and it

20   was therefore implausible that the author would omit the harm

21   that allegedly befell Singh in the past. See Majidi, 430 F.3d

22   at 80; see also Siewe, 480 F.3d at 167.


                                    5
1        Lastly, the agency reasonably found Singh’s corroborating

2    evidence insufficient to rehabilitate his credibility. See

3    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

4    curiam)(“An applicant’s failure to corroborate his or her

5    testimony may bear on credibility, because the absence of

6    corroboration in general makes an applicant unable to

7    rehabilitate testimony that has already been called into

8    question.”). Singh challenges the IJ’s decision to give

9    diminished weight to his corroborating letters and affidavits

10   because they were written for purposes of Singh’s proceedings

11   by interested parties who were not available for cross

12   examination. However, the agency reasonably declined to credit

13   this evidence.   See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.

14   2013) (deferring to agency’s decision to give “letter ‘very

15   little evidentiary weight,’ both because it was unsworn and

16   because it was submitted by an interested witness”); In re H-L-H-

17   & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving

18   diminished weight to letters from relatives because “[t]he

19   authors of the letters are interested witnesses who were not

20   subject to cross-examination”), rev’d on other grounds by Hui

21   Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see also Xiao

22   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.


                                    6
1    2006) (holding that the weight accorded to an applicant’s

2    evidence “lie[s] largely within the discretion of the IJ”

3    (alteration in original)(internal quotation marks omitted)).

4         Given the agency’s findings, and its reasonable treatment

5    of   Singh’s   corroborating   evidence,   the   totality   of   the

6    circumstances supports the adverse credibility determination.

7    See Xiu Xia Lin, 534 F.3d at 165-66. A reasonable adjudicator

8    would not be compelled to conclude otherwise. Id. at 167. The

9    credibility finding is dispositive of Singh’s claims for asylum,

10   withholding of removal, and CAT relief due to his status as a

11   politically active Sikh separatist because those claims are

12   based on the same discredited factual predicate. See Paul v.

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

14        Singh does not meaningfully challenge the agency’s

15   determination that he did not establish his eligibility for

16   asylum, withholding of removal, or CAT relief solely on the basis

17   of his Sikh religion, and has therefore waived review of that

18   determination in this Court. See Norton v. Sam’s Club, 145 F.3d

19   114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the

20   briefs are considered waived and normally will not be addressed

21   on appeal.”). Although Singh asserts that the IJ ignored

22   evidence that established his fear of future persecution, he


                                     7
1    is incorrect. The IJ considered this evidence and took

2    administrative notice of the most recent State Department

3    International Religious Freedom Report that addressed religious

4    persecution in India, but reasonably found that the evidence

5    did not describe incidents of persecution against Sikhs on

6    account of their religion. And, while the IJ acknowledged that

7    a report from the Immigration and Refugee Board of Canada

8    reflects the detention of Sikh separatists suspected of

9    “militancy,” the IJ correctly observed that this evidence was

10   not relevant to Singh because the political dimension of his

11   claim was not credible. Certified Administrative Record at 131.

12   Singh does not address these findings in his brief.

13       Lastly, Singh’s challenge to the BIA’s refusal to consider

14   his supplemental country conditions evidence on appeal or to

15   remand to the IJ for consideration of the evidence in the first

16   instance is meritless.     “[T]he Board will not engage in

17   factfinding in the course of deciding appeals,” 8 C.F.R.

18   § 1003.1(d)(3)(iv), and “[a] motion to remand that relies on

19   newly available evidence is held to the substantive requirements

20   of a motion to reopen,” Li Yong Cao v. U.S. Dep’t of Justice,

21   421 F.3d 149, 156 (2d Cir. 2005). A movant seeking remand for

22   consideration of new evidence must therefore present “material,


                                    8
1    previously unavailable evidence,” id., and satisfy the “‘heavy

2    burden’ of demonstrating that the proffered new evidence would

3    likely alter the result in [his] case,” Jian Hui Shao v. Mukasey,

4    546 F.3d 138, 168 (2d Cir. 2008)(quoting Immig. & Naturalization

5    Serv. v. Abudu, 485 U.S. 94, 110 (1988). Singh does not challenge

6    the BIA’s finding that his evidence was neither new nor

7    sufficient to alter the outcome of his proceedings and has

8    therefore waived review of that determination in this Court.

9    See Norton, 145 F.3d at 117.

10       For the foregoing reasons, the petition for review is

11   DENIED.

12                                FOR THE COURT:
13                                Catherine O’Hagan Wolfe, Clerk




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