    15-3552-ag
    Singh v. Sessions
                             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.


          At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
    Square, in the City of New York, on the 14th day of April, two thousand
    seventeen.

    PRESENT:
               PETER W. HALL,
               DENNY CHIN,
                          Circuit Judges.
               LASHANN DEARCY HALL,
                          District Judge.*
    _____________________________________

    JAGJEET SINGH,
             Petitioner,

                        v.                                       15-3552-ag

    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,
               Respondent.
    _____________________________________

    For Petitioner:                     GURPATWANT SINGH PANNUN, Jackson
                                        Heights, N.Y.

    For Respondent:                     BRENDAN    P.   HOGAN, Trial Attorney;
                                        Benjamin   C.   Mizer, Principal Deputy


          *     Judge LaShann DeArcy Hall, United States District Judge for the
    Eastern District of New York, sitting by designation.
                                   Assistant Attorney General; Song Park,
                                   Senior Litigation Counsel; Office of
                                   Immigration Litigation, United States
                                   Department of Justice, Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is GRANTED.

      Petitioner Jagjeet Singh, a native and citizen of India, seeks review of an

October 16, 2015, decision of the BIA affirming a December 9, 2013, decision of

an Immigration Judge (“IJ”) denying Singh’s application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Jagjeet Singh, No. A205 427 652 (B.I.A. Oct. 16, 2015), aff’g

No. A205 427 652 (Immig. Ct. N.Y. City Dec. 9, 2013). We assume the parties’

familiarity with the underlying facts and procedural history in this case.

      Under the circumstances of this case, we have considered both the IJ’s

and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of

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

Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008); Pierre v. Gonzales, 502 F.3d

109, 113 (2d Cir. 2007).

A.    Asylum

      Our jurisdiction to review the agency’s finding that an asylum

application is untimely is limited to constitutional claims and questions of law.

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8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). The agency erred as a matter of law in

pretermitting Singh’s asylum application as untimely filed.

      An asylum applicant must “demonstrate[] by clear and convincing

evidence that the application has been filed within 1 year after the date of the

alien’s arrival in the United States.”       8 U.S.C. § 1158(a)(2)(B).      Here,

however, the agency required Singh to definitively establish his arrival date,

and ignored evidence that Singh lived in India during the year preceding his

filing, which was material to whether he filed his application within one year

of his arrival in the United States. Accordingly, the agency erred as a matter

of law by applying an incorrect burden and ignoring material evidence as to

the timeliness of Singh’s application and remand is required. See 8 U.S.C.

§ 1158(a)(2)(B); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329

(2d Cir. 2006) (explaining that application of “legally erroneous standard” or

“fact-finding which is flawed by error of law” are reviewable issues).

B.    Withholding of Removal and CAT Relief

      “Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on the . . . consistency

between the applicant’s . . . written and oral statements (whenever made and

whether or not under oath, and considering the circumstances under which

the statements were made), . . . without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64. The agency’s adverse
                                        3
credibility determination is not supported by the totality of the circumstances.

      The agency found Singh not credible as to his claim that he was detained

and beaten on two occasions in India because he omitted certain details of

those beatings from his asylum application.       The agency may, in certain

circumstances, rely on omissions from an application in rendering an adverse

credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 166–67 & n.3. However, an asylum applicant is not required to provide

every detail of his claim in the application. See Secaida-Rosales v. INS, 331

F.3d 297, 308 (2d Cir. 2003) (“Although the application invites the applicant to

attach additional pages, we think the small space on the form itself would

hardly indicate to an applicant that the failure to include every detail

regarding the basis for asylum could later lead to an adverse credibility

finding when the applicant elaborates on [those dates] in the course of a

deportation hearing.”), superseded by statute on other grounds as recognized in

Xiu Xia Lin, 534 F.3d at 167. Given that Singh’s testimony and application

were virtually identical with only one or two descriptive details missing from

his initial written statement, the IJ erred in characterizing the statements as

inconsistencies or omissions when viewed in light of the totality of the

circumstances. See id.; see also 8 U.S.C. § 1158(b)(1)(B)(iii).

      Without an adequate basis for questioning Singh’s credibility, the

agency was not permitted to rely solely on a failure to corroborate to find him

not credible. See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000); Chuilu Liu
                                       4
v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009).           Because we cannot

confidently predict that the agency would have made the same decision absent

the identified errors, remand is required. See Xiao Ji Chen, 471 F.3d at 339.

      Finally, we note that insofar as the BIA affirmed the IJ’s alternative

finding that Singh could relocate within India to avoid persecution, that

finding was erroneous because the IJ improperly placed the burden of proof on

Singh when his alleged persecutor was the Indian government. See 8 C.F.R.

§ 1208.16(b)(3)(ii) (“In cases in which the persecutor is a government or is

government-sponsored, or the applicant has established persecution in the

past, it shall be presumed that internal relocation would not be reasonable,

unless the Service establishes by a preponderance of the evidence that under

all circumstances it would be reasonable for the applicant to relocate.”).

      For the foregoing reasons, the petition for review is GRANTED, and the

case is REMANDED for further proceedings consistent with this order.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk




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