     16-852
     Singh v. Sessions
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A200 206 661
                              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   10th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            RICHARD C. WESLEY,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   TERJINDER SINGH,
14            Petitioner,
15
16                       v.                                          16-852
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Amy Nussbaum Gell, Gell & Gell, New
24                                       York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General;
28                                       Michelle G. Latour, Deputy Director;
29                                       Victor M. Lawrence, Senior
30                                       Litigation Counsel, 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 Terjinder Singh, a native and citizen of India,

6    seeks review of a February 22, 2016, decision of the BIA

7    affirming an October 16, 2014, 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 Terjinder Singh, No. A200 206 661 (B.I.A. Feb.

11   22, 2016), aff’g No. A200 206 661 (Immig. Ct. N.Y. City Oct.

12   16, 2014).       We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14        As    an   initial    matter,   the    agency     acted   within   its

15   discretion in excluding two letters that Singh submitted on the

16   day of his second merits hearing, over two months after the

17   deadline for filing evidence, because Singh did not establish

18   good cause for the late filing.          See Dedji v. Mukasey, 525 F.3d

19   187, 191 (2d Cir. 2008).

20        Moreover, the agency’s adverse credibility determination

21   is   supported     by     substantial      evidence.       See   8 U.S.C.

22   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

23   (2d Cir. 2008).     Under the circumstances of this case, we have

                                          2
1    reviewed both the BIA’s and IJ’s decisions.          See Yun-Zui Guan

2    v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).         The agency may,

3    “[c]onsidering the totality of the circumstances,” base an

4    adverse credibility finding on an applicant’s inconsistent

5    statements, including testimony that conflicts with the asylum

6    application     or   other   record        evidence.          8        U.S.C.

7    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                   “We

8    defer . . . to an IJ’s credibility determination unless, from

9    the totality of the circumstances, it is plain that no

10   reasonable fact-finder could make such an adverse credibility

11   ruling.”      Xiu Xia Lin, 534 F.3d at 167.            Further, “[a]

12   'petitioner must do more than offer a plausible explanation for

13   his   inconsistent   statements       to   secure   relief;       he    must

14   demonstrate that a reasonable fact-finder would be compelled

15   to credit his testimony.’”    Majidi v. Gonzales, 430 F.3d 77,

16   80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d

17   66, 76 (2d Cir. 2004)).

18         Substantial evidence supports the agency’s determination

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

20   relied on the contradiction between Singh’s testimony that he

21   knew that the creation of a separate Sikh state called Khalistan

22   was a “main goal” of his party and his failure to mention

23   Khalistan when asked about his party’s objectives during his

                                       3
1    credible fear interview.   Xiu Xia Lin, 534 F.3d at 166-67 & n.

2    3 (“An inconsistency and an omission are . . . functionally

3    equivalent” for credibility purposes).        While the agency

4    should not place too much weight on an applicant’s lack of

5    doctrinal knowledge, see Rizal v. Gonzales, 442 F.3d 84, 90-91

6    (2d Cir. 2006), in this case the agency was relying on Singh’s

7    omission of information that he claimed to be aware of.

8        Second, the agency reasonably relied on discrepancies in

9    Singh’s credible fear interview, his asylum application, and

10   his testimony regarding whether it was Singh himself or his

11   family members who reported the 2011 attack to the police.      In

12   his credible fear interview, Singh stated that his family

13   members reported the attack to the police, who failed to act.

14   In his asylum application, however, Singh stated that he

15   reported the 2011 attack himself: “I again reported this attack

16   to the police. I request[ed] some action against the attacks.

17   I also request[ed] some protection for myself.      But [the]

18   police failed to do either of these.”   But at his hearing, Singh

19   backtracked, testifying that his family reported the attack to

20   the police.   The agency reasonably concluded that this

21   discrepancy undermined Singh’s credibility, particularly as it

22   related to one of only two allegations of past harm.     Xiu Xia

23   Lin, 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency

                                    4
1    or omission in making an adverse credibility determination as

2    long as the ‘totality of the circumstances’ establishes that

3    an asylum applicant is not credible.” (quoting 8 U.S.C.

4    § 1158(b)(1)(B)(iii)); Xian Tuan Ye v. Dep’t of Homeland Sec.,

5    446 F.3d 289, 295 (2d Cir. 2006) (even one material

6    inconsistency may provide substantial evidence for adverse

7    credibility determination).

8        Finally, the agency reasonably relied on inconsistencies

9    regarding Singh’s motivation for coming to the United States.

10   Singh told Border Patrol officers that he came to the United

11   States to work for 5 or 6 years and he did not have any fear

12   of returning to India.    At his hearing, Singh acknowledged that

13   he made these statements but explained they were untrue: he was

14   hungry and thirsty because he had “lived in the jungle for so

15   many days” and he did not “know what [he] was saying.”       Later,

16   he added that the interview was conducted in English, which he

17   did not understand very well, and that he did not know what was

18   written on the form he signed.

19       While the agency should be cautious in giving weight to

20   these   types   of   border   interviews,   see   Ramsameaschire   v.

21   Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004), any lack of

22   reliability was overcome by Singh’s testimony that he made the

23   statements in question.       Singh’s explanation that he was hungry

                                        5
1    and thirsty is not compelling because he acknowledged that he

2    was able to eat before the interview, and in any case does not

3    explain why he would state that he was not afraid of returning

4    to India when his alleged purpose in coming to the United States

5    was to seek asylum.      Singh now argues that he had a “mixed

6    motive” for coming to the United States, but this does not

7    explain why he would tell U.S. officials that he did not have

8    a fear of returning to India.        Majidi, 430 F.3d at 80-81.

9        Additionally, Singh’s motivation is further called into

10   question because he obtained his passport in October 2010, more

11   than a month before his first alleged attack.       Singh explained

12   that his mother wanted him to obtain a passport because he was

13   “feeling danger” even before he was attacked; the IJ was not

14   required to credit this explanation because Singh’s asylum

15   application stated that he was “targeted for the first time”

16   in December 2010.      Majidi, 430 F.3d at 80-81.

17        The IJ reasonably concluded that Singh’s corroborating

18   evidence   did   not   rehabilitate    Singh’s   claim,   given   the

19   inconsistencies between that evidence and Singh’s testimony and

20   because Singh did not provide a letter from the Mann Party in

21   India confirming his membership.        Biao Yang v. Gonzales, 496

22   F.3d at 268, 273 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of

23   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting that the weight

                                      6
1    accorded to the applicant’s evidence lies largely within the

2    discretion of the agency).

3        Given the multiple discrepancies relating to Singh’s

4    claim, as well as the lack of rehabilitative corroborating

5    evidence, the totality of the circumstances supports the

6    agency’s ruling.     Xiu Xia Lin, 534 F.3d at 167.     Because

7    Singh’s claims were all based on the same factual predicate,

8    the adverse credibility determination is dispositive of asylum,

9    withholding of removal, and CAT relief.   Paul v. Gonzales, 444

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

11       For the foregoing reasons, the petition for review is

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

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

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

15   is DENIED as moot.    Any pending request for oral argument in

16   this petition is DENIED in accordance with Federal Rule of

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

18   34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O=Hagan Wolfe, Clerk




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