     15-2055
     Singh v. Lynch
                                                                                       BIA
                                                                                   Segal, IJ
                                                                               A200 814 768
                           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 August, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MANDEEP SINGH,
14            Petitioner,
15
16                    v.                                             15-2055
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Jaspreet     Singh,     Jackson     Heights,
24                                       N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Jesse M.
28                                       Bless, Senior Litigation Counsel;
29                                       Colette J. Winston, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       Washington, 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 is

4    DISMISSED IN PART and DENIED IN PART.

5           Petitioner Mandeep Singh, a native and citizen of India,

6    seeks review of a May 27, 2015, decision of the BIA, affirming

7    a January 2, 2014, decision of an Immigration Judge (“IJ”)

8    denying Singh’s motion to continue and application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Mandeep Singh, No. A200 814 768 (B.I.A.

11   May 27, 2015), aff’g No. A200 814 768 (Immig. Ct. N.Y. City Jan.

12   2, 2014).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14          Under the circumstances of this case, we review both the

15   IJ’s and BIA’s decisions.    Yun-Zui Guan v. Gonzales, 432 F.3d

16   391, 394 (2d Cir. 2005).    The applicable standards of review

17   are well established.    8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

18   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19     I.     Asylum: One-Year Jurisdictional Bar

20          We lack jurisdiction to review Singh’s petition as it

21   relates to the agency’s pretermission of asylum.       An asylum

22   application must be filed within one year of an applicant’s


                                     2
1    arrival in the United States, absent changed or extraordinary

2    circumstances.     8 U.S.C. § 1158(a)(2)(B), (D).          Although we

3    generally   lack     jurisdiction     to    review    the     agency’s

4    pretermission of asylum on timeliness grounds, we retain

5    jurisdiction to review “constitutional claims or questions of

6    law.”   8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

7        Singh asserts, contrary to his representations before the

8    BIA, that the agency’s pretermission determination was based

9    on fact-finding that is flawed by an error of law because the

10   record conclusively demonstrates that his prior counsel timely

11   field an asylum application.      Singh argued before the BIA that

12   the record demonstrated that his prior counsel was ineffective

13   for failing to timely file his application.           We decline to

14   consider Singh’s unexhausted legal challenge and dismiss his

15   petition for lack of jurisdiction as it relates to the agency’s

16   pretermission of asylum.        See Lin Zhong v. U.S. Dep’t of

17   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that

18   judicially imposed issue exhaustion is mandatory).

19     II. Credibility-Based Denial of Withholding of Removal and
20         CAT Relief
21
22       For asylum applications like Singh’s, governed by the REAL

23   ID Act, the agency may, “[c]onsidering the totality of the

24   circumstances,”    base   a   credibility   finding   on    an   asylum

                                       3
1    applicant’s    “demeanor,     candor,    or   responsiveness,”     the

2    plausibility   of    his   account,   and   inconsistencies   in   his

3    statements, “without regard to whether” they go “to the heart

4    of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

5    Xia Lin, 534 F.3d at 163-64.          “We defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder could

8    make such an adverse credibility ruling.”          Id. at 167.      As

9    discussed below, substantial evidence supports the agency’s

10   adverse credibility determination.

11       The adverse credibility determination was properly based

12   on the inconsistency between Singh’s testimony and application

13   about whether his father reported Singh’s January 2010 beating

14   to the police.      Singh’s application declared that his father

15   did not want to report this incident because he feared that it

16   would create more serious problems.            However, when asked

17   whether his father reported the beating to the police, Singh

18   responded, “Yes, he did go.”            When confronted with this

19   inconsistency, Singh paused; he then responded, “I don’t know

20   whether he did go or not.”      When the IJ asked whether he was

21   changing his testimony, Singh reversed course: “No, I am still

22   saying that he did go . . . he told me that he did go.”            The


                                       4
1    IJ was entitled to rely on this inconsistency and reasonably

2    observed that Singh was simply changing his testimony to cover

3    up an obvious inconsistency.

4           The agency’s adverse credibility determination was also

5    properly based on the omission of Singh’s political activities

6    from    his   asylum   application.            See   id.   at    166   n.3    (“An

7    inconsistency and an omission are . . . functionally equivalent”

8    for credibility purposes).                Singh testified that he was

9    politically active in India and that he accompanied his father

10   during his father’s political activities.                  When asked why his

11   application only mentioned his father’s political activities,

12   Singh responded that maybe the information “was missed.”                      The

13   IJ reasonably found that Singh gave no convincing explanation

14   for the omission of this important information.                        Majidi v.

15   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

16   do more than offer a plausible explanation for his inconsistent

17   statements to secure relief; he must demonstrate that a

18   reasonable      fact-finder   would       be    compelled       to   credit    his

19   testimony.” (internal quotation marks and emphasis omitted)).

20          The    agency   also   reasonably         rested     its      credibility

21   determination on inconsistencies between Singh’s application

22   and testimony concerning his father’s September 2010 injury.


                                           5
1    Singh’s application asserted that his father was attacked and

2    brutally beaten by local Hindus, which resulted in a broken

3    right knee and serious head injury.       However, he testified that

4    his father suffered those injuries from a motorbike accident

5    when he was sideswiped by another vehicle.          When confronted

6    with this inconsistency, Singh responded that his testimony was

7    correct.     The IJ reasonably found it troubling that Singh

8    conceded that the representation in his application that his

9    father had been brutally beaten was false.

10         On appeal, Singh insists that the inconsistencies and

11   omissions were not directly material to his claims.          Not so.

12   These inconsistencies concerned Singh and his father’s alleged

13   beatings     in   India.      However,   the   materiality   of   the

14   inconsistencies is irrelevant, because “an IJ may rely on any

15   inconsistency or omission in making an adverse credibility

16   determination as long as the totality of the circumstances

17   establishes that an asylum applicant is not credible.”       Xiu Xia

18   Lin, 534 F.3d at 167 (internal quotation marks and emphasis

19   omitted).    The totality of the circumstances clearly supports

20   the IJ’s credibility determination here.            Because Singh’s

21   claims for withholding of removal and CAT relief were based on

22   the   same    factual      predicate,    the   adverse   credibility


                                        6
1    determination is dispositive of both claims.    Paul v. Gonzales,

2    444 F.3d 148, 156-57 (2d Cir. 2006).     We therefore deny the

3    petition as it relates to Singh’s claims for withholding of

4    removal and CAT relief.

5      III. Continuance Denial

6        Singh lastly asserts that the IJ erred in denying his motion

7    to continue in order to submit documents.      The IJ’s denial of

8    a request for a continuance is reviewed “under a highly

9    deferential standard of abuse of discretion.”          Morgan v.

10   Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).     An IJ “may grant

11   a motion for continuance for good cause shown,” 8 C.F.R.

12   § 1003.29, and has the authority to set deadlines for the

13   submission of documents, id. § 1003.31(c).          Although the

14   regulations do not define “good cause,” the agency requires that

15   a movant seeking a “continuance based upon an asserted lack of

16   preparation . . . . make a reasonable showing that the lack of

17   preparation occurred despite a diligent good faith effort to

18   be ready to proceed . . . [and] establish[] that th[e] denial

19   caused him actual prejudice and harm and materially affected

20   the outcome of his case.”   In re Sibrun, 18 I. & N. Dec. 354,

21   356-57 (B.I.A. 1983).




                                    7
1        The agency did not abuse its discretion in concluding that

2    Singh failed to meet the good cause standard.    The IJ gave Singh

3    one year to submit additional supporting documents, and Singh

4    waited until after that submission deadline passed to request

5    a 90-day continuance.   His explanation—that he did receive some

6    documents, but had to send them back to India to have them

7    translated   from   Hindi   to   English—does   not   amount   to   a

8    “reasonable showing that the lack of preparation occurred

9    despite a diligent good faith effort,” id. at 357.

10       For the foregoing reasons, the petition for review is

11   DISMISSED IN PART and DENIED IN PART.     As we have completed our

12   review, any stay of removal that the Court previously granted

13   in this petition is VACATED, and any pending motion for a stay

14   of removal in this petition is DISMISSED as moot.      Any pending

15   request for oral argument in this petition is DENIED in

16   accordance with Federal Rule of Appellate Procedure 34(a)(2),

17   and Second Circuit Local Rule 34.1(b).

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




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