     18-1493
     Singh v. Barr
                                                                           BIA
                                                                    Schoppert, IJ
                                                                   A200 236 190
                          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 26th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD J. SULLIVAN,
10            STEVEN J. MENASHI,
11                 Circuit Judges.
12   _____________________________________
13
14   BALWINDER SINGH,
15            Petitioner,
16
17                   v.                                  18-1493
18                                                       NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                 Amy Nussbaum Gell, Gell & Gell,
25                                   New York, NY.
26
27   FOR RESPONDENT:                 Ethan P. Davis, Acting Assistant
28                                   Attorney General; Ernesto H.
29                                   Molina, Jr., Deputy Director;
 1                                  Nancy N. Safavi, Trial Attorney,
 2                                  Office of Immigration Litigation,
 3                                  United States Department of
 4                                  Justice, Washington, DC.
 5
 6          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

 7   AND DECREED that this petition for review of a decision of

 8   the Board of Immigration Appeals (“BIA”) is DENIED.

 9          Petitioner Balwinder Singh, a native and citizen of

10   India, seeks review of an April 26, 2018, decision of the BIA

11   affirming a July 5, 2017 decision of an Immigration Judge

12   (“IJ”) denying his application for asylum, withholding of

13   removal, and relief under the Convention Against Torture

14   (“CAT”).     In re Balwinder Singh, No. A200 236 190 (B.I.A.

15   Apr. 26, 2018), aff’g No. A200 236 190 (Immig. Ct. N.Y. City

16   Jul. 5, 2017).       We assume the parties’ familiarity with the

17   underlying facts and procedural history.

18          We review the agency’s adverse credibility determination

19   for substantial evidence.        8 U.S.C. § 1252(b)(4)(B). Under

20   the circumstances of this case, we review the IJ’s decision

21   as modified by the BIA.        That is, we need not consider the

22   IJ’s    discussion    of   purported   inconsistencies   in   Singh’s

23   testimony about his arrest record because the BIA did not

24   rely on that ground in affirming the adverse credibility

25   determination.    See Hong Fei Gao v. Sessions, 891 F.3d 67, 76

                                        2
 1   (2d Cir. 2018).

 2       “Considering the totality of the circumstances, and all

 3   relevant factors, a trier of fact may base a credibility

 4   determination on . . . the consistency between the applicant’s

 5   or witness’s written and oral statements . . . , without

 6   regard to whether an inconsistency, inaccuracy, or falsehood

 7   goes to the heart of the applicant’s claim, or any other

 8   relevant factor.”      8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer

 9   . . . to an IJ’s credibility determination unless, from the

10   totality of the circumstances, it is plain that no reasonable

11   fact-finder could make such an adverse credibility ruling.”

12   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

13   accord Hong Fei Gao, 891 F.3d at 76.

14       Here,     substantial    evidence     supports      the   agency’s

15   determination that Singh was not credible as to his claim

16   that police and members of a rival political party detained

17   and beat him because of his membership in the political party

18   Shiromani   Akali   Dal   Amritsar    (“SADA”).   The   BIA   properly

19   relied on the inconsistency between Singh’s statements at his

20   initial credible fear interview and his subsequent asylum

21   application    about    whether   SADA   seeks    to    establish   an

22   independent Sikh state. At the credible fear interview, Singh


                                       3
 1   stated that SADA’s leader “does not want a separate state”

 2   and asserted that articles suggesting the contrary were “just

 3   rumors.”    However, in his subsequent written application for

 4   asylum and withholding of removal, Singh stated that SADA

 5   demands    “an   independent   homeland   for   the   Sikhs   called

 6   Khalistan.”

 7       When the IJ confronted Singh with this inconsistency,

 8   Singh testified that he told the asylum officer at the

 9   credible    fear   interview   that   SADA’s    leader   “demands   a

10   separate state, but this separate state cannot be established

11   now.”     But the interview record—which reflects that Singh

12   unequivocally denied that SADA’s leader seeks a separate

13   state—does not support that explanation.           Further, at the

14   beginning of the interview, the asylum officer informed Singh

15   of the importance of telling the truth and that his statements

16   could be used in future immigration proceedings.          Thus, the

17   agency was not required to accept Singh’s explanation for the

18   inconsistency.     See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

19   Cir. 2005) (“A petitioner must do more than offer a plausible

20   explanation for his inconsistent statements to secure relief;

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

22   compelled to credit his testimony.” (internal quotation marks


                                      4
 1   omitted)).

 2         Contrary to Singh’s argument that this inconsistency

 3   about SADA’s goals was minor, his membership in SADA was the

 4   alleged motive for the purported attacks against him and the

 5   basis for his political opinion claim. Cf. Xian Tuan Ye v.

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

 7   (holding, in a pre-REAL ID Act case, that an inconsistency

 8   concerning     the   basis    of    an       applicant’s    asylum     claim   is

 9   substantial     evidence      of   adverse       credibility).       “[E]ven    a

10   single inconsistency might preclude an alien from showing

11   that an IJ was compelled to find him credible,” Likai Gao v.

12   Barr, No. 18-358, 2020 WL 4290009, at *4 n.8 (2d Cir. July

13   28, 2020), and the IJ may rely on such an inconsistency

14   “without regard to whether [it] . . . goes to the heart of

15   the applicant’s claim,” 8 U.S.C. § 1158(b)(1)(B)(iii). And

16   while   a    “trivial   inconsistency           or   omission   that    has    no

17   tendency to suggest a petitioner fabricated his or her claim

18   will not support an adverse credibility determination,” Hong

19   Fei   Gao,    891    F.3d    at    77,   given       the   “totality    of     the

20   circumstances” here, we defer to the agency’s credibility

21   determination, Likai Gao, 2020 WL 4290009, at *4; see also

22   Xiu Xia Lin, 534 F.3d at 167.


                                              5
 1         Moreover, the agency reasonably determined that Singh

 2   did    not   rehabilitate      his       credibility       with    reliable

 3   corroborating     evidence.      The      IJ   did   not   err    in   giving

 4   diminished weight to affidavits from Singh’s father, his

 5   wife, and an elected official from his village because the

 6   authors were not subject to cross-examination and Singh’s

 7   father was an interested witness.              See Y.C. v. Holder, 741

 8   F.3d 324, 332 (2d Cir. 2013) (providing that “[w]e generally

 9   defer to the agency’s evaluation of the weight to be afforded

10   to an applicant’s documentary evidence” and deferring to

11   agency’s decision to afford little weight to letter from

12   applicant’s spouse).

13         Because    Singh’s    claims       for   asylum,     withholding     of

14   removal, and CAT relief were all based on the same factual

15   predicate, the agency’s adverse credibility determination is

16   dispositive of all three.            Hong Fei Gao, 891 F.3d at 76.

17   Singh argues that the agency further erred in denying CAT

18   relief because two reports in the record, not undermined by

19   the   agency’s    adverse     credibility       determination,         discuss

20   torture by police in Singh’s region of India.                     But those

21   reports do not provide an independent basis for CAT relief

22   because they do not contain particularized evidence that


                                          6
 1   police are likely to torture him.                 See Mu Xiang Lin v. U.S.

 2   Dep’t   of    Justice,    432   F.3d       156,    159–60   (2d   Cir.   2005)

 3   (concluding     that     “particularized          evidence”   beyond     State

 4   Department reports is necessary to establish eligibility for

 5   CAT protection for applicant alleging she would be tortured

 6   for leaving China illegally).

 7       For the foregoing reasons, the petition for review is

 8   DENIED.      All pending motions and applications are DENIED and

 9   stays VACATED.

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




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