     18-1720
     Singh v. Barr
                                                                                   BIA
                                                                               Lurye, IJ
                                                                           A200 815 954
                          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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 23rd day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            RAYMOND J. LOHIER, JR.,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   HARMEET SINGH,
14            Petitioner,
15
16                   v.                                          18-1720
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jaspreet Singh, Jackson Heights,
24                                    NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Jeffrey R.
28                                    Leist, Senior Litigation Counsel;
29                                    Kathleen Kelly Volkert, Trial
30                                    Attorney, Office of Immigration
31                                    Litigation, United States
32                                    Department of Justice, Washington,
33                                    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          Petitioner Harmeet Singh, a native and citizen of India,

6    seeks review of a May 11, 2018, decision of the BIA affirming

7    a June 28, 2017, decision of an Immigration Judge (“IJ”)

8    denying his application for asylum, withholding of removal,

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

10   re Harmeet Singh, No. A200 815 954 (B.I.A. May 11, 2018),

11   aff’g No. A200 815 954 (Immig. Ct. N.Y. City June 28, 2017).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history.

14         Under the circumstances, we have considered both the IJ’s

15   and   the   BIA’s   opinions     “for    the   sake   of   completeness.”

16   Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528

17   (2d Cir. 2006).      The applicable standards of review are well

18   established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

19   Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

20         “Considering the totality of the circumstances, and all

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

22   determination       on   .   .   .   the   consistency      between   the

23   applicant’s or witness’s written and oral statements . . . ,
                                          2
1    the   internal         consistency    of     each   such    statement,       the

2    consistency       of     such   statements     with   other       evidence   of

3    record . . . without regard to whether an inconsistency,

4    inaccuracy, or falsehood goes to the heart of the applicant’s

5    claim,      or     any     other     relevant       factor.”          8 U.S.C.

6    § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

7    163–64 (2d Cir. 2008).             Substantial evidence supports the

8    agency’s determination that Singh was not credible as to his

9    claim that police and members of the Akali Dal Badal party

10   beat him twice in India on account of his membership in the

11   Akali Dal Mann party.

12         The    adverse      credibility       determination     was    based   on

13   inconsistent statements from Singh’s credible fear interview,

14   asylum      application,        hearing     testimony,      and     supporting

15   letters.     See 8 U.S.C. § 1158(b)(1)(B)(iii).                As an initial

16   matter, the agency did not err in relying on the record of

17   Singh’s credible fear interview because the record of the

18   interview        was   sufficiently       reliable:   the    interview       was

19   conducted with an interpreter, it was memorialized in a

20   typewritten question-and-answer format, the questions posed

21   were designed to elicit details of Singh’s asylum claim, and

22   Singh’s responses indicated that he understood the questions.

23   See Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir. 2009)
                                             3
1    (requiring close scrutiny of credible fear interviews but

2    finding    a      record    reliable     when     it     is     typewritten,

3    demonstrates that the applicant understood the questions,

4    reflects questions about past harm or fear of future harm,

5    and is conducted with an interpreter).

6          The agency reasonably found that Singh provided different

7    birthdates to an asylum officer during his credible fear

8    interview and police in Michigan during an arrest than he

9    provided     in    his     removal   proceedings.              See   8 U.S.C.

10   § 1158(b)(1)(B)(iii).          Singh     was    unable    to    explain     the

11   inconsistencies; rather, he further impugned his credibility

12   by stating that he had not known his correct birthdate during

13   his   credible     fear    interview,    despite    the       fact   that   the

14   interviewer transcribed the purportedly correct birthdate and

15   would have had no basis to know that date if Singh had not

16   provided it.       See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

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

18   explanation for his inconsistent statements to secure relief;

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

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

21   omitted)).

22         The agency also reasonably relied on Singh’s inconsistent

23   descriptions of his second attack as to whether his attackers
                                          4
 1   chased after him.          See 8 U.S.C. § 1158(b)(1)(B)(iii).        When

 2   asked to explain the inconsistency, Singh repeatedly changed

 3   his testimony, creating new inconsistencies that supported

 4   finding him not credible.         See id.; see also Majidi, 430 F.3d

 5   at 80.

 6         Having    questioned      Singh’s      credibility,    the   agency

 7   reasonably relied further on his failure to rehabilitate his

 8   testimony      with   reliable     corroborating     evidence.        “An

 9   applicant’s failure to corroborate his or her testimony may

10   bear on credibility, because the absence of corroboration in

11   general makes an applicant unable to rehabilitate testimony

12   that has already been called into question.”                Biao Yang v.

13   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).             The agency did

14   not err in declining to credit affidavits from Singh’s parents

15   and neighbor or unsworn doctors’ notes because some of the

16   authors were interested witnesses and none were available for

17   cross-examination.         See Y.C. v. Holder, 741 F.3d 324, 332 (2d

18   Cir. 2013) (“We generally defer to the agency’s evaluation of

19   the   weight    to    be     afforded   an    applicant’s    documentary

20   evidence.”); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.

21   209, 215 (B.I.A. 2010) (finding that letters from alien’s

22   friends and family were insufficient to provide “substantial

23   support” for alien’s claims because they were from interested
                                         5
1    witnesses not subject to cross-examination), overruled on

2    other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–

3    38 (2d Cir. 2012).

4           Given the inconsistency and corroboration findings, the

5    agency’s adverse credibility determination is supported by

6    substantial evidence.*                 See 8 U.S.C. § 1158(b)(1)(B)(iii).

7    That credibility determination was dispositive of asylum,

8    withholding of removal, and CAT relief because all three

9    claims were based on the same factual predicate.                                 See Paul

10   v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

11          For the foregoing reasons, the petition for review is

12   DENIED.       All pending motions and applications are DENIED and

13   stays VACATED.

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




     * The IJ erred by failing to provide Singh an opportunity to explain additional inconsistencies
     identified in the record. See Ming Shi Xue v. B.I.A., 439 F.3d 111, 125 (2d Cir. 2006).
     Nevertheless, remand would be futile because Singh’s inconsistent statements regarding his
     birthdate and alleged second attack as well as his changing stories when asked to explain those
     inconsistencies were more than sufficient to support the agency’s adverse credibility
     determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
     (holding that remand is futile when this Court can “confidently predict” that the agency would
     reach the same decision absent the errors); see also Xiu Xia Lin, 534 F.3d at 165–67.
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