     15-2560
     Singh v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A200 893 817

                           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   29th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JORAWAR SINGH,
14            Petitioner,
15
16                    v.                                             15-2560
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Dalbir Singh, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer; Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       C.   Payne,   Assistant    Director;
28                                       Kathleen K. Volkert, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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    DENIED.

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

6    seeks review of a July 14, 2015, decision of the BIA affirming

7    a July 29, 2014, decision of an Immigration Judge (“IJ”) denying

8    Singh’s application for asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).           In re

10   Jorawar Singh, No. A200 893 817 (B.I.A. July 14, 2015), aff’g

11   No. A200 893 817 (Immig. Ct. N.Y. City July 29, 2014).    We assume

12   the   parties’   familiarity   with   the   underlying   facts   and

13   procedural history in this case.

14         We have reviewed the decisions of both the IJ and BIA.     Ming

15   Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).               The

16   applicable standards of review are well established.      8 U.S.C.

17   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

18   (2d Cir. 2008).

19         Singh does not challenge the pretermission of asylum on

20   timeliness grounds or the denial of his claim of future

     
      The Government moves for summary denial of the petition. We deny
     that motion. Summary denial requires the Government to demonstrate
     that a petition is frivolous. See Pillay v. INS, 45 F.3d 14, 17 (2d
     Cir. 1995). It has not done so here. Accordingly, we review the
     petition in its entirety on the merits.

                                      2
1    persecution      by     the    Bharatiya       Janata     Party    (“BJP”).

2    Accordingly,      we    address    only       the   adverse   credibility

3    determination     as    it    relates    to   Singh’s     application   for

4    withholding of removal and CAT relief based on his alleged fear

5    of persecution by the Congress Party.

6          For applications like Singh’s, governed by the REAL ID Act,

7    the     agency   may,    “[c]onsidering         the     totality   of   the

8    circumstances,” base a credibility finding on an applicant’s

9    “demeanor, candor, or responsiveness,” and inconsistencies in

10   his statements and evidence, “without regard to whether” those

11   inconsistencies go “to the heart of the applicant’s claim.”               8

12   U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534

13   F.3d at 163-64.          “We defer . . . to an IJ’s credibility

14   determination unless, from the totality of the circumstances,

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

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

17         We defer to the agency’s decision for several reasons.

18   First, credibility determination was properly based on the

19   inconsistency between Singh’s testimony and application about

20   whether Congress Party members broke one or both of his father’s

21   legs.     Id.    Singh’s application stated that Congress Party

22   members broke both his father’s legs with a baseball bat;

23   however, he testified that only one of his father’s legs was


                                         3
1    broken.     The agency reasonably rejected Singh’s explanation

2    that this discrepancy resulted from a translation error: Singh

3    confirmed    before   testifying       that   he   had    reviewed   his

4    application and that the information was correct, and he did

5    not provide any evidence to support his claim of error.              See

6    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner

7    must do more than offer a plausible explanation for his

8    inconsistent statements to secure relief; he must demonstrate

9    that a reasonable fact-finder would be compelled to credit his

10   testimony.” (internal quotation marks and citation omitted)).

11       The adverse credibility determination is further supported

12   by inconsistencies between Singh’s testimony and his father’s

13   medical records about the treatment his father received for the

14   alleged injury.    Xiu Xia Lin, 534 F.3d at 167.         Singh testified

15   that his father’s leg was X-rayed and placed in a cast; however,

16   the doctor’s account reflected an operation.             When confronted

17   with this inconsistency, Singh agreed that an operation was

18   done, but was unable to explain why that was not reflected in

19   his application or testimony.          The IJ was not compelled to

20   accept Singh’s explanation that he did not understand because

21   it did not resolve his omission of the information.             Majidi,

22   430 F.3d at 80.

23       The credibility determination is further supported by


                                        4
1    inconsistencies between Singh’s testimony and credible fear

2    interview about his level of involvement with the Akali Dal

3    political party, which was the impetus for the alleged harm.

4    Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009)

5    (observing that an adverse credibility determination may be

6    based on inconsistencies relating to a credible fear interview,

7    if “the record of a credible fear interview displays the

8    hallmarks of reliability.”).   Singh testified that he was an

9    active member of the party and that he posted flyers, attended

10   rallies, and spoke to people about their rights; however, he

11   stated during his credible fear interview that he was not a

12   member, just a worker and only did small jobs for the party.

13   Singh does not meaningfully challenge the reliability of his

14   interview record in his brief and, instead, contends that he

15   was nervous and could not recall fully the details of his claim.

16   But Singh did not omit that he was member of the Akali Dal

17   political party during his credible fear interview; he stated

18   explicitly that he was not.    “We . . . reject the notion that

19   a petitioner’s claim that []he was nervous and distracted during

20   the credible fear interview automatically undermines or negates

21   its reliability as a source of h[is] statements.”   Id. at 725.

22       Given the foregoing inconsistencies, which relate both to

23   Singh’s political activities and the alleged incidents of


                                    5
1    persecution, the totality of the circumstances supports the

2    credibility determination.      Xiu Xia Lin, 534 F.3d at 167.   The

3    credibility determination is dispositive of Singh’s Congress

4    Party-based claims for withholding of removal and CAT relief

5    because those claims relied on the same factual predicate.

6    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).           We

7    therefore   decline     to   reach    the   agency’s   alternative

8    determination that Singh did not establish past persecution due

9    to a lack of sufficient harm.    INS v. Bagamasbad, 429 U.S. 24,

10   25 (1976) (“As a general rule courts and agencies are not

11   required to make findings on issues the decision of which is

12   unnecessary to the results they reach.”).

13       For the foregoing reasons, the Government’s motion for

14   summary denial is DENIED and the petition for review is instead

15   DENIED on the merits.   As we have completed our review, any stay

16   of removal that the Court previously granted in this petition

17   is VACATED, and any pending motion for a stay of removal in this

18   petition is DISMISSED as moot.       Any pending request for oral

19   argument in this petition is DENIED in accordance with Federal

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

21   Rule 34.1(b).

22                                  FOR THE COURT:
23                                  Catherine O’Hagan Wolfe, Clerk



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