     16-1540
     Singh v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 579 919
                              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   8th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   KHUSHWANT SINGH,
15            Petitioner,
16
17                       v.                                          16-1540
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Amy Nussbaum Gell, Gell & Gell, New
25                                       York, NY.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Linda S.
29                                       Wernery, Assistant Director; Steven
30                                       K. Uejio, Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       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 is

4    DENIED.

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

6    seeks review of an April 21, 2016, decision of the BIA affirming

7    a November 6, 2014, decision of an Immigration Judge (“IJ”)

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

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

10   re Khushwant Singh, No. A205 579 919 (B.I.A. Apr. 21, 2016),

11   aff’g No. A205 579 919 (Immig. Ct. N.Y. City Nov. 6, 2014).    We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we have considered

15   both the BIA’s and IJ’s decisions.    Yun-Zui Guan v. Gonzales,

16   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards of

17   review are well established.   8 U.S.C. § 1252(b)(4)(B); Xiu

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

19   agency may, “considering the totality of the circumstances,”

20   base an adverse credibility ruling on an asylum applicant’s

21   “demeanor, candor, or responsiveness,” an applicant’s

22   internally inconsistent testimony, discrepancies between an

23   applicant’s oral and written statements, and discrepancies

                                    2
1    between an applicant’s statements and other record evidence.

2    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

3    “We defer . . . to an IJ’s credibility determination unless

4    . . . it is plain that no reasonable fact-finder could make such

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

6        Substantial evidence supports the agency’s determination

7    that Singh was not credible.         First, the agency reasonably

8    relied on Singh’s internally inconsistent and evasive testimony

9    regarding whether he was harmed by the Indian police.       8 U.S.C.

10   § 1158(b)(1)(B)(iii).     Singh initially testified that he was

11   harassed by the Indian police, but when asked to describe that

12   harassment, changed his testimony and said that he believed the

13   police “would have” harassed him.      When asked to clarify if he

14   was “actually harassed by government authorities,” Singh

15   indicated   that   he   was   threatened,   but   not   harassed    or

16   persecuted.    When the IJ then asked Singh to explain why a

17   letter from his political party stated he was harassed, Singh

18   said that he was harassed, then said he was threatened, but was

19   unable to remember any details of what occurred or when.           The

20   documentary evidence enhanced, rather than resolved, this

21   discrepancy.   The letter from Singh’s party stated that Singh

22   and his family faced government harassment “many times” and the

23   harassment was what forced Singh to flee the country.              And

                                      3
1    Singh’s testimony conflicted with his asylum application and

2    other evidence, which did not mention that he was harassed or

3    threatened by the police.   See Xiu Xia Lin, 534 F.3d at 166 n.3

4    (“An inconsistency and an omission are . . . functionally

5    equivalent” for credibility purposes).       This discrepancy alone

6    provided substantial evidence for the adverse credibility

7    determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446

8    F.3d 289, 295 (2d Cir. 2006) (relying on single material

9    inconsistency as providing substantial evidence for adverse

10   credibility determination).

11       And the adverse credibility determination was bolstered by

12   an additional inconsistency, Singh’s nonresponsive demeanor,

13   as well as the lack of rehabilitative corroborating evidence.

14   8 U.S.C. § 1158(b)(1)(B)(iii).       Singh testified that his family

15   was harassed and threatened by government authorities after he

16   left India, but he denied that his father was tortured.     Singh’s

17   father swore in an affidavit, however, that he was tortured.

18   The IJ was not compelled to accept Singh’s explanation that his

19   father and other family members were metaphorically “tortured”

20   by the mistreatment of Singh.    As the IJ noted, Singh’s father

21   first wrote that Singh was in danger and separately stated,

22   “They also tortured me and my family.” See Majidi v. Gonzales,

23   430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner ‘must do more than

                                      4
1    offer a plausible explanation for his inconsistent statements

2    to secure relief; he must demonstrate that a reasonable

3    fact-finder would be compelled to credit his testimony.’”

4    (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 76 (2d Cir.

5    2004)).

6        “We   ‘afford       particular       deference    in    applying    the

7    substantial    evidence       standard’     when     reviewing   an     IJ's

8    credibility findings.”        Jin Chen v. U.S. Dep’t of Justice, 426

9    F.3d 104, 113 (2d Cir. 2005) (quoting Zhou Yun Zhang, 386 F.3d

10   at 73-74).    Particularly on cross examination, Singh was not

11   responsive.    As the IJ noted, Singh did not adequately answer

12   questions about how many times he applied for a U.S. visa before

13   coming to the United States.         See Shu Wen Sun v. BIA, 510 F.3d

14   377, 381 (2d Cir. 2007) (petitioner’s evasive and nonresponsive

15   testimony supported adverse credibility finding).                 Singh’s

16   explanation of confusion or interpretation problems is not

17   compelling    because    he    confirmed     that    he    understood   the

18   interpreter during this problematic portion of his testimony.

19   See Majidi, 430 F.3d at 80-81.

20       The agency also reasonably concluded that Singh failed to

21   rehabilitate his claim with reliable corroborating evidence.

22   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

23   (recognizing that “applicant’s failure to corroborate his . . .

                                          5
1    testimony may bear on credibility, because the absence of

2    corroboration    in   general     makes   an    applicant    unable   to

3    rehabilitate testimony that has already been called into

4    question”).     In particular, Singh did not produce letters to

5    corroborate that he lived in hiding for more than a year.             His

6    explanation that he did not want his sisters-in-law who hid him

7    to get in trouble is unavailing: Singh submitted letters from

8    other     non-blood   relatives    and    had   already     placed    the

9    sisters-in-law in danger by hiding with them.         See Majidi, 430

10   F.3d at 80-81.

11       Given the foregoing inconsistencies regarding whether

12   Singh was harmed by the Indian police and whether his family

13   members were tortured, as well as Singh’s lack of responsiveness

14   and the lack of corroboration, the totality of the circumstances

15   supports the agency’s adverse credibility ruling.           See 8 U.S.C.

16   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Xian Tuan

17   Ye, 446 F.3d at 295.    The adverse credibility determination is

18   dispositive of asylum, withholding of removal, and CAT relief

19   because all three claims were based on the same factual

20   predicate.     Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

21   2006).

22       For the foregoing reasons, the petition for review is

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

                                        6
1   that the Court previously granted in this petition is VACATED,

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

3   is DENIED as moot.   Any pending request for oral argument is

4   DENIED in accordance with Federal Rule of Appellate Procedure

5   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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