     14-4288 (L)
     Singh v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 625 215
                           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   15th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HARPREET SINGH,
14            Petitioner,
15                                                                   14-4288(L),
16                    v.                                             15-3021(Con)
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Jaspreet Singh, Jackson Heights,
24                                       New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Keith I.
28                                       McManus, Senior Litigation Counsel;
29                                       Brendan P. Hogan, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
1           UPON DUE CONSIDERATION of these petitions for review of two

2    Board of Immigration Appeals (“BIA”) decisions, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petitions for review

4    are DENIED.

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

6    seeks review of (1) the October 17, 2014, decision of the BIA,

7    affirming a May 29, 2013, decision of an Immigration Judge

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

9    removal, and relief under the Convention Against Torture

10   (“CAT”), In re Harpreet Singh, No. A200 625 215 (B.I.A. Oct.

11   17, 2014), aff’g No. A200 625 215 (Immig. Ct. N.Y. City May 29,

12   2013), and (2) the August 27, 2015, decision of the BIA denying

13   his motion to reopen, In re Harpreet Singh, No. A200 625 215

14   (B.I.A. Aug. 27, 2015).          We assume the parties’ familiarity

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

16     I.      Merits – Docket Number 13-3120(L)

17          Under the circumstances of this case, we have considered

18   both    the   IJ’s   and   the   BIA’s   opinions   “for   the   sake   of

19   completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

20   524, 528 (2d Cir. 2006).         The applicable standards of review

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

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

23   may, “[c]onsidering the totality of the circumstances,” base

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1    a    credibility    finding        on    inconsistencies        in     an   asylum

2    applicant’s statements and other record evidence “without

3    regard to whether” they go “to the heart of the applicant’s

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

5    at   163-64.       Substantial          evidence     supports      the   agency’s

6    determination that Singh was not credible.

 7         The IJ reasonably relied on record inconsistencies.                    Singh

 8   testified that members of an opposing political party had come

 9   to his family’s home to threaten him in January 2010 and that

10   police had come to threaten him the following month.                     However,

11   his mother’s affidavit omitted any mention of the second

12   incident.      See Xiu Xia Lin, 534 F.3d at 166 n.3 (“[a]n

13   inconsistency      and   an    omission        are    .    .   .   functionally

14   equivalent.”).      In addition, Singh omitted from his asylum

15   application his assertion that he lived with friends and

16   relatives in India after being threatened.                     See id.      He also

17   failed    to   disclose       in        his   application       (and     provided

18   inconsistent testimony about) his arrest and conviction in the

19   United States.      See id. at 166 n.3 & 167.             Singh did not provide

20   a compelling explanation for any of the record inconsistencies.

21   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

22         Having questioned Singh’s credibility, the IJ reasonably

23   relied further on his failure to provide certain corroborating

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1    evidence to rehabilitate his testimony.       See Biao Yang v.

2    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).     Affidavits from

3    Singh’s mother and his political party did not corroborate his

4    assertion that his safety was threatened twice in 2010.     And

5    Singh did not submit a statement or testimony from his cousin

6    (who purportedly experienced the same treatment in India and

7    fled the country at the same time) even though he admitted that

8    he could have contacted his cousin who was also in the United

9    States.    See Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir.

10   2009) (“[T]he alien bears the ultimate burden of introducing

11   such evidence without prompting from the IJ.”).

12       Given the inconsistency and corroboration findings, the

13   agency’s adverse credibility determination is supported by

14   substantial evidence, and is dispositive of Singh’s claims for

15   asylum, withholding of removal, and CAT relief.    See 8 U.S.C.

16   § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156-57

17   (2d Cir. 2006).     Therefore, we do not reach the agency’s

18   alternative burden finding.

19     II.     Motion to Reopen – Docket Number 15-3021(Con)

20       We have reviewed the BIA’s denial of Singh’s motion to

21   reopen for abuse of discretion, and any factual findings for

22   substantial evidence.    Jian Hui Shao v. Mukasey, 546 F.3d 138,

23   168-69 (2d Cir. 2008).   Singh’s motion to reopen was untimely

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1    filed because the agency’s final order of removal was entered

2    in October 2014 and Singh did not file his motion to reopen until

3    June 2015, well beyond the 90-day deadline.        See 8 U.S.C.

4    § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     The BIA did not

5    err in declining to equitably toll the time period based on

6    Singh’s ineffective assistance of counsel claim.

7         In order to prevail on a claim of ineffective assistance

8    of counsel, a movant must show that competent counsel would have

9    acted otherwise, and that the alien was prejudiced by his

10   counsel’s performance.   Rabiu v. INS, 41 F.3d 879, 882-83 (2d

11   Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993).

12   Singh failed to satisfy either prong.

13        Singh argues that his former counsel was ineffective

14   because he omitted the addresses where Singh hid in India and

15   Singh’s criminal record from Singh’s asylum application.

16   Singh continues that he was prejudiced as a result because the

17   IJ found his testimony inconsistent with his application based

18   on those omissions.   However, Singh swore before the IJ that

19   he was aware of the contents of his application and that it was

20   correct.   Furthermore, even if Singh’s former counsel was

21   deficient for failing to disclose the conviction (although the

22   record indicates that Singh failed to inform counsel of it),

23   Singh cannot demonstrate prejudice as a result because Singh

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1    testified falsely that he had never been charged with a crime

2    in   the   United   States   thereby   impugning    his   credibility

3    irrespective of counsel’s actions.         See Rabiu, 41 F.3d at

4    882-83; see also Xiu Xia Lin, 534 F.3d at 166-67.         We also note

5    that Singh’s allegations of ineffective assistance before the

6    IJ do not impact several of the findings that remain as valid

7    bases for the adverse credibility determination.

8         Finally, Singh argues that counsel was ineffective on

9    appeal to the BIA by failing to adequately explain the record

10   inconsistencies or lack of corroboration.          However, Singh has

11   not demonstrated that counsel was ineffective or that he was

12   prejudiced to this extent because, other than his conclusory

13   assignment of error, he has not described the available

14   explanations that should have been proffered.          See Rabiu, 41

15   F.3d at 882-83.

16        Accordingly, because Singh failed to demonstrate that his

17   former counsel was ineffective or establish a realistic chance

18   that the IJ would have found him credible but for counsel’s

19   performance, the BIA did not abuse its discretion in rejecting

20   Singh’s ineffective assistance of counsel claim.           See id.

21        For the foregoing reasons, the petitions for review are

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

23   that the Court previously granted in these petitions is VACATED,

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1   and any pending motion for a stay of removal in these petitions

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

3   in these petitions is DENIED in accordance with Federal Rule

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

5   34.1(b).

6                                FOR THE COURT:
7                                Catherine O=Hagan Wolfe, Clerk




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