     17-462
     Sindh v. Barr
                                                                                                                      BIA
                                                                                                                Poczter, IJ
                                                                                                             A206 443 904
                            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 30th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   PARMINDER SINGH,
14            Petitioner,
15
16                    v.                                                                      17-462
17                                                                                            NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.1
21   _____________________________________
22
23   FOR PETITIONER:                                   Dalbir Singh, New York, NY.
24
25   FOR RESPONDENT:                                   Chad A. Readler, Acting Assistant
26                                                     Attorney General; Cindy S.
27                                                     Ferrier, Assistant Director;
28                                                     Andrew N. O’Malley, Senior
29                                                     Litigation Counsel, Office of
30                                                     Immigration Litigation, United


     1 According to the parties’ briefs, the Petitioner’s surname is “Singh” rather than “Sindh.” The Clerk of Court is
     therefore directed to amend the caption as above.
1                                    States Department of Justice,
2                                    Washington, DC.
3
4         UPON DUE CONSIDERATION of this petition for review of a

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

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8         Petitioner Parminder Singh, a native and citizen of

9    India, seeks review of a January 19, 2017, decision of the

10   BIA affirming a July 7, 2016, decision of an Immigration Judge

11   (“IJ”) denying Singh’s application for asylum, withholding of

12   removal, and relief under the Convention Against Torture

13   (“CAT”).     In re Parminder Sindh, No. A 206 443 904 (B.I.A.

14   Jan. 19, 2017), aff’g No. A 206 443 904             (Immig. Ct. N.Y.C.

15   July 7, 2016).    We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17        Under the circumstances of this case, we have reviewed

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

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

20   adverse    credibility       determinations    under    a    substantial

21   evidence standard.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

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

                                          2
1    governing REAL ID Act credibility standard provides:

 2       Considering the totality of the circumstances, and
 3       all relevant factors, a trier of fact may base a
 4       credibility determination on the demeanor, candor,
 5       or responsiveness of the applicant or witness, the
 6       inherent   plausibility   of   the   applicant’s   or
 7       witness’s account, the consistency between the
 8       applicant’s   or    witness’s   written    and   oral
 9       statements[,] . . . the internal consistency of each
10       such statement, the consistency of such statements
11       with other evidence of record[,] . . . and any
12       inaccuracies or falsehoods in such statements,
13       without   regard   to   whether   an   inconsistency,
14       inaccuracy, or falsehood goes to the heart of the
15       applicant’s claim, or any other relevant factor.
16
17   8 U.S.C. § 1158(b)(1)(B)(iii).          “We defer . . . to an IJ’s

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

19   reasonable fact-finder could make such an adverse credibility

20   ruling.”     Xiu    Xia   Lin,    534   F.3d   at   167;   see   8 U.S.C.

21   § 1252(b)(4)(B).      As discussed below, substantial evidence

22   supports    the    agency’s   determination     that   Singh     was   not

23   credible.

24       The agency reasonably relied on inconsistencies between

25   Sindh’s testimony and his supporting evidence in finding that

26   Singh was not credible.          See 8 U.S.C. § 1158(b)(1)(B)(iii).

27   Singh’s testimony that he never reported any of the attacks

28   against him to the police contradicted his uncle’s affidavit,

                                         3
1    which stated that he and Sindh went to the police station

2    together to report an August 2013 attack.                   And Singh’s

3    testimony that he and his uncle, but not his mother, spent

4    two months in hiding in Delhi contradicted Singh’s mother’s

5    affidavit, which reflected that she accompanied Singh to

6    Delhi.

7           The agency also reasonably relied on Singh’s uncle’s

8    omission of any reference to the two months he and Singh spent

9    living    in    hotels   in   Delhi   as   support   for    its     adverse

10   credibility determination.         The agency may rely on omissions

11   in a witness’s letter to support an adverse credibility

12   determination.      Xiu Xia Lin, 534 F.3d at 167.            Although an

13   applicant’s inability to explain a third party’s omission may

14   be less probative of credibility where the omission is not

15   inconsistent with the applicant’s account, when the omitted

16   “facts are ones that a credible [witness] would reasonably

17   have     been    expected     to   disclose    under       the     relevant

18   circumstances,” the agency may rely on such an omission to

19   support an adverse credibility determination.               Hong Fei Gao

20   v. Sessions, 891 F.3d 67, 77-79 (2d Cir. 2018).                  The agency

21   was permitted to rely on the fact that Singh’s uncle never
                                           4
1    discussed the time Singh allegedly spent feeling persecution

2    in India because one would reasonable expect Singh’s uncle to

3    disclose such a substantial period of avoiding persecution.

4        Singh now argues that the agency should not have credited

5    the affidavits because his mother and uncle were interested

6    witnesses who were not available for cross- examination.                   As

7    the Government observes, Singh did not raise this argument

8    before the agency, and it is therefore precluded from our

9    review because it is an unexhausted claim.                   See Foster v.

10   INS, 376 F.3d 75, 77-78 (2d Cir. 2004) (requiring petitioners

11   to raise issue to the BIA to preserve them for judicial

12   review).   In any event, the argument also fails on the merits

13   because the agency may rely on inconsistencies between an

14   applicant’s   statements     and    “other       evidence     of    record,”

15   8 U.S.C.   § 1158(b)(1)(B)(iii),         and   the     agency      has   broad

16   discretion in weighing the evidence, see Y.C. v. Holder, 741

17   F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the

18   agency’s   evaluation   of    the       weight    to    be    afforded      an

19   applicant’s   documentary     evidence.”).              Moreover,        Singh

20   submitted these affidavits as support for his application and

21   does not give any reason why they would be unreliable except
                                         5
1    for his relatives’ relationship to him, which if anything,

2    suggests that they would try to support his asylum claim

3    rather than undermine it.

4        In finding Singh not credible, the agency also reasonably

5    relied on Sindh’s inability to provide details about his time

6    in Delhi when he was asked on cross examination how long he

7    stayed in Delhi, at how many hotels he stayed, the names of

8    the hotels, and the amount of time he spent at each hotel.

9    See Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2007)

10   (explaining    that     vague   testimony      may   support    an   adverse

11   credibility determination if “government counsel or the IJ

12   first attempts to solicit more detail from the alien”).

13       Considered cumulatively, the inconsistencies, between

14   Singh’s statements and the supporting affidavits, Singh’s

15   inability     to   give   details,       and   the    lack     of    reliable

16   corroboration provide substantial evidence for the adverse

17   credibility ruling.        See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia

18   Lin, 534 F.3d at 167.           Because all of Singh’s claims were

19   based on the same factual predicate, the adverse credibility

20   determination      is   dispositive      of    asylum,   withholding      of

21   removal, and CAT relief.          Paul v. Gonzales, 444 F.3d 148,
                                          6
1   156-57 (2d Cir. 2006).

2       For the foregoing reasons, the petition for review is

3   DENIED.

4                             FOR THE COURT:
5                             Catherine O’Hagan Wolfe,
6                             Clerk of Court




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