     17-729
     Singh v. Barr
                                                                                      BIA
                                                                                 Cheng, IJ
                                                                  A200 618 986/200 815 262

                          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 9th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   KARAMJIT SINGH, SUKHWINDER KAUR,
14            Petitioners,
15
16                   v.                                          17-729
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONERS:                 David Molot, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Russell J.E.
27                                    Verby, Senior Litigation Counsel;
28                                    John D. Williams, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    Justice, Washington, DC.
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

4    is DENIED.

5        Petitioners Karamjit Singh and Sukhwinder Kaur, natives

6    and citizens of India, seek review of a February 13, 2017,

7    decision of the BIA affirming a November 5, 2015, decision of

8    an Immigration Judge (“IJ”) denying their applications for

9    asylum,   withholding    of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).       In re Karamjit Singh,

11   Sukhwinder Kaur, Nos. A 200 618 986/200 815 262 (B.I.A. Feb.

12   13, 2017), aff’g Nos. A 200 618 986/200 815 262 (Immig. Ct.

13   N.Y. City Nov. 5, 2015).      We assume the parties’ familiarity

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

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions.        Wangchuck v. Dep’t of

17   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).         We review

18   adverse   credibility   determinations   under   the    substantial

19   evidence standard.      Hong Fei Gao v. Sessions, 891 F.3d 67,

20   76 (2d Cir. 2018).      The governing REAL ID Act credibility

21   standard provides as follows:

                                      2
 1        Considering the totality of the circumstances, and
 2        all relevant factors, a trier of fact may base a
 3        credibility determination on . . . the consistency
 4        between the applicant’s or witness’s written and
 5        oral statements[,] . . . the consistency of such
 6        statements with other evidence of record[,] . . .
 7        and any inaccuracies or falsehoods in such
 8        statements,   without   regard    to   whether   an
 9        inconsistency, inaccuracy, or falsehood goes to the
10        heart of the applicant’s claim, or any other
11        relevant factor.
12
13   8 U.S.C. § 1158(b)(1)(B)(iii).       “We defer . . . to an IJ’s

14   credibility determination unless . . . it is plain that no

15   reasonable fact-finder could make such an adverse credibility

16   ruling.”     Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

17   2008); see 8 U.S.C. § 1252(b)(4)(B).           Kaur and her husband

18   Singh both premised their asylum applications on arrests and

19   mistreatment     that   they   suffered   on     account   of   their

20   involvement with the Shiromani Akala Dal-Amritsar (“SADA”)

21   party.     As discussed below, substantial evidence supports the

22   agency’s adverse credibility determination.

23   I.   Kaur

24        The agency reasonably relied on the stark discrepancies

25   between Kaur’s statements during her credible fear interview

26   and her testimony at the merits hearing.          See Ming Zhang v.


                                      3
1    Holder, 585 F.3d 715, 725 (2d Cir. 2009).1        Kaur does not

2    dispute that there are significant inconsistencies between

3    her credible fear interview and her asylum application and

4    testimony.   At her interview, Kaur stated:      that her father

5    had a leadership role in SADA and was murdered by Congress

6    Party members in 2008; that her husband joined SADA in 2009

7    and was also attacked by the Congress Party; that she was

8    married to one of the men who had crossed the border with

9    her; that she was not personally involved with SADA; and that

10   the only harm she suffered personally was a threatening phone

11   call.   By contrast, in her application and at the hearing,

12   Kaur alleged that she was also a SADA member, remained

13   politically active after her husband left India, and was

14   arrested and severely mistreated on three occasions because

15   of her political activities. Kaur said that, during the

16   credible fear interview, she omitted her own membership in



     1Kaur does not challenge the reliability of the credible fear
     interview record, and we find no error in the agency’s reliance on
     it: Kaur had a Punjabi interpreter, the asylum officer explained
     the purpose of the interview and the importance of answering
     truthfully, the officer asked questions designed to elicit details
     of an asylum claim, the questions and answers are memorialized in
     a typewritten document, and Kaur did not demonstrate difficulty
     understanding. See Ming Zhang, 585 F.3d at 724-25.
                                     4
1    SADA and her mistreatment because she was afraid that the

2    United States officers would dislike SADA and was traumatized

3    from her experiences with the Indian police.

4        In reaching his adverse credibility finding, the IJ

5    reasonably relied on these two “materially different asylum

6    claims.”   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398–99 (2d

7    Cir. 2005) (“Where, as here, immigration officials have been

8    presented with two ‘materially different’ asylum claims, it

9    is entirely appropriate for a factfinder to rely on this

10   evidence as a basis for determining whether a petitioner was

11   actually persecuted in the manner asserted or is instead

12   merely reciting an account fabricated for the purposes of

13   obtaining entry into the United States.”); see also Siewe v.

14   Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false

15   document or a single instance of false testimony may (if

16   attributable to the petitioner) infect the balance of the

17   alien’s uncorroborated or unauthenticated evidence.”).    The

18   agency also reasonably relied on Kaur’s failure to include in

19   her asylum application her father’s leadership role in the

20   SADA party and the Congress Party’s suspected role in his

21   death.   See Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.

                                   5
1    2007).    These      omitted    facts      “are   ones    that     a    credible

2    petitioner would reasonably have been expected to disclose

3    under the relevant circumstances,” Hong Fei Gao, 891 F.3d at

4    79, especially because Kaur described her father’s leadership

5    role and his suspected murder in her credible fear interview.

6         The agency was not required to accept Kaur’s explanations

7    for these inconsistencies and omissions.                    See Majidi v.

8    Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner

9    must do more than offer a plausible explanation for his

10   inconsistent       statements     to       secure     relief;          ‘he    must

11   demonstrate that a reasonable fact-finder would be compelled

12   to   credit    his     testimony.”         (internal      quotation          marks

13   omitted)).     Kaur argues that the agency failed to take into

14   account that she was traumatized by her mistreatment by the

15   Indian police.      But the interview record does not reflect any

16   hesitation    or   difficulty     answering         the   asylum       officer’s

17   questions.    See Ming Zhang, 585 F.3d at 725 (“We again reject

18   the notion that a petitioner’s claim that she was nervous and

19   distracted during the credible fear interview automatically

20   undermines or negates its reliability as a source of her

21   statements”).      And Kaur provided no medical documentation to

                                            6
1    corroborate her mental state.            Moreover, her explanation that

2    she was afraid to disclose her SADA association during the

3    interview     is   undercut    by    her      willingness       to   reveal    her

4    father’s leadership position with SADA.

5          As to her failure to describe her father’s activities

6    and suspected murder in her application, Kaur testified that

7    her former lawyer told her not to include this information in

8    her   asylum   application      because        there      was   no   proof     that

9    Congress Party members killed her father.                   The IJ found this

10   explanation implausible.            In any event, it does not resolve

11   the discrepancy because Kaur submitted her father’s death

12   certificate,       and   she   could         have    simply     stated    in    her

13   application that she and her mother believed her father was

14   killed by Congress party members but had no proof.                              See

15   Majidi, 430 F.3d at 80-81.

16         In light of the significant discrepancies between Kaur’s

17   credible fear interview and her application and testimony,

18   substantial evidence supports the agency’s determination that

19   she was not credible.          Because Kaur’s claims were all based

20   on    the   same   factual     predicate,           the   adverse    credibility

21   determination       disposes        of       her     requests       for   asylum,

                                              7
1    withholding of removal, and CAT relief.               Paul v. Gonzales,

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

3 II.       Singh

4           Singh failed to exhaust and waived his asylum claim

5    because he did not challenge the IJ’s pretermission of his

6    asylum claim as untimely on appeal to the BIA and he does not

7    argue that issue in this Court.          See Lin Zhong v. U.S. Dep’t

8    of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (exhaustion);

9    Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.

10   2005)    (waiver).        Accordingly,   we   will    only   address   the

11   adverse credibility determination since it provided the basis

12   for the denial of withholding of removal and CAT relief.                As

13   to the specific types of mistreatment Singh suffered while in

14   detention, the agency reasonably relied on discrepancies

15   between Singh’s asylum application and his testimony.                  See

16   Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)

17   (holding that although an asylum applicant does not need to

18   include every detail in an application, the agency can rely

19   on the fact that an application and testimony “described the

20   same    incidents    of    persecution    differently.”).        Singh’s

21   application    and   hearing     testimony     both    described   being

                                         8
1    tortured while in detention; however, at the hearing, he

2    omitted some types of torture that were described in his

3    application and testified about forms of torture that were

4    not included in the application.       Singh’s explanation that

5    he thought it was sufficient to mention “torture” does not

6    resolve the inconsistencies given the specificity with which

7    he described each type of mistreatment in his application and

8    the Government attorney’s questioning about each specific

9    type of torture. See Majidi, 430 F.3d at 80-81.

10       The agency also relied on Singh’s failure to mention

11   Kaur’s mistreatment.      Although Kaur’s alleged harm occurred

12   after Singh left India, he acknowledged that he was aware of

13   the events.     The information was relevant given that their

14   alleged harm arose from the same activities, their SADA

15   activism.     See Xiu Xia Lin, 534 F.3d at 167 (holding that

16   collateral    omissions   and   inconsistencies   may   support   an

17   adverse credibility ruling as long as “the cumulative effect

18   of those inconsistencies reasonably could have affected the

19   IJ’s evaluation of [petitioner’s] credibility”).

20       In sum, Singh’s varying descriptions of the mistreatment

21   he suffered, combined with his failure to include Kaur’s

                                       9
1    mistreatment and his father-in-law’s suspected murder in his

2    application, provided substantial reason      for the adverse

3    credibility ruling, which was dispositive of withholding of

4    removal and CAT relief.    See Paul, 444 F.3d at 156-57.

5        For the foregoing reasons, the petition for review is

6    DENIED.    As we have completed our review, any stay of removal

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.    Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court




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