         12-376
         Singh v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 164 703
                            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 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 24th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                REENA RAGGI,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       KAMALDEEP SINGH,
14                Petitioner,
15
16                         v.                                   12-376
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Jaspreet Singh, Jackson Heights, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Edward J. Duffy,
28                                     Senior Litigation Counsel; John M.
29                                     McAdams, Jr., Attorney, Office of
 1                           Immigration Litigation, United
 2                           States Department of Justice,
 3                           Washington, D.C.
 4
 5        UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED in part and DENIED in part.

 9        Kamaldeep Singh, a native and citizen of India, seeks

10   review of a December 30, 2011, decision of the BIA affirming

11   the April 27, 2010, decision of Immigration Judge (“IJ”)

12   Mary Cheng, which pretermitted his asylum application as

13   untimely, and denied his applications for withholding of

14   removal and for relief under the Convention Against Torture

15   (“CAT”).   In re Kamaldeep Singh, No. A087 164 703 (B.I.A.

16   Dec. 30, 2011), aff’g No. A087 164 703 (Immig. Ct. N.Y. City

17   April 27, 2010).   We assume the parties’ familiarity with

18   the underlying facts and procedural history in this case.

19   I.   Asylum - Pretermission

20        Singh challenges the agency’s pretermission of his

21   asylum application as untimely, asserting that he was

22   excepted from the one year limitation because he had been

23   pursuing an adjustment of status based on his marriage to a

24   U.S. citizen.   Although we lack jurisdiction to review

25   pretermission, see 8 U.S.C. § 1158(a)(3), (a)(2)(B),

                                   2
 1   (a)(2)(D), we retain jurisdiction to review constitutional

 2   claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D).

 3   While Singh’s argument raises a question of law, Xiao Ji

 4   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.

 5   2006), it lacks merit.    As the IJ found, the denial of

 6   adjustment of status does not constitute a changed

 7   circumstance because it does not affect an individual’s

 8   eligibility for asylum, which turns solely on the alien’s

 9   fear of persecution.     See 8 U.S.C. § 1158(b)(1)(A),

10   (a)(2)(D) (requiring that a changed    circumstance be

11   material to the claim for asylum).

12   II. Withholding of Removal

13       Under the circumstances of this case, we have reviewed

14   the IJ’s decision as modified by the BIA.     Yun-Zui Guan v.

15   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     For

16   applications such as Singh’s, governed by the amendments

17   made to the Immigration and Nationality Act by the REAL ID

18   Act of 2005, the agency may, considering the totality of the

19   circumstances, base a credibility finding on the applicant’s

20   “demeanor, candor, or responsiveness,” the plausibility of

21   his account, and inconsistencies in his statements, without

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


                                     3
 1   claim.”     See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

 2   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

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

 4   from the totality of the circumstances, it is plain that no

 5   reasonable fact-finder could make” such a ruling.     Xiu Xia

 6   Lin, 534 F.3d at 167.     In this case, the IJ’s adverse

 7   credibility determination is supported by substantial

 8   evidence.

 9       The IJ reasonably based her credibility finding on

10   Singh’s inconsistent testimony, omissions in his testimony,

11   his non-responsiveness, and his lack of documentary

12   evidence.     See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

13   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167; Biao Yang v.

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

15       First, the IJ relied on inconsistencies and omissions

16   in Singh’s testimony, including the following: (1) Singh’s

17   testimony that he had not suffered internal injuries, though

18   his asylum application specifically mentioned both internal

19   and external injuries; (2) his failure to mention a 2005

20   arrest and detention for political activities in his

21   application; and (3) the omission of the 2005 arrest from

22   his uncle’s letter.     The IJ reasonably relied on these


                                     4
 1   inconsistencies and omissions in making her adverse

 2   credibility determination.   See 8 U.S.C.

 3   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

 4   at 167 (providing that an IJ may support an adverse

 5   credibility determination with “any inconsistency or

 6   omission”).

 7       Moreover, the IJ was not required to credit Singh’s

 8   explanations for these inconsistencies and omissions.     See

 9   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

10   Although Singh stated that he meant to testify that he did

11   not suffer internal fractures, and that he thought his 2005

12   arrest was too minor to mention in his application, he also

13   stated that his memory, and his uncle’s, had faded over

14   time.   Because these explanations were unpersuasive and did

15   not resolve the inconsistencies, the agency was not required

16   to credit them.   See id. (providing that the agency need not

17   credit an applicant’s explanations for inconsistent

18   testimony unless those explanations would compel a

19   reasonable fact-finder to do so).

20       The adverse credibility determination is further

21   supported by Singh’s non-responsiveness.    For example, when

22   Singh was asked how he practiced his Sikh faith in India, he

23   responded by talking about how Sikhs are attacked in India.
                                   5
 1   Similarly, when asked how he practices his faith in the

 2   United States, he responded only that Sikhs are free in this

 3   country.   He did not mention that he attends a “gurdwara”

 4   until asked directly.   Because the IJ’s demeanor finding was

 5   tied to these instances of non-responsiveness and the above-

 6   mentioned inconsistencies, we defer to that finding.     See Li

 7   Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

 8   2006).

 9       Given the discrepancies and Singh’s lack of

10   responsiveness, the IJ did not err in requiring additional

11   corroboration.   See Biao Yang, 496 F.3d at 273.    The letter

12   from Singh’s uncle did not mention the 2005 arrest, even

13   though Singh testified that his uncle had paid a large bribe

14   to secure his release, nor did Singh offer any evidence that

15   he is a Sikh, or has been involved with the United Sikh

16   movement, or medical evidence of his injuries.     Because, as

17   the BIA noted, much of this evidence was reasonably

18   available, as Singh claims to attend gurdwara with other

19   Sikhs, and he could have obtained a medical report from a

20   doctor in the United States, the lack of corroboration

21   provides further support for the adverse credibility

22   determination.   See Chuilu Liu v. Holder, 575 F.3d 193, 198

23   (2d Cir. 2009); Biao Yang, 496 F.3d at 273.   Because the
                                   6
 1   only evidence of a threat to Singh’s life or freedom

 2   depended upon his credibility, the adverse credibility

 3   determination in this case necessarily precludes a grant of

 4   withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

 5   156 (2d Cir. 2006).

 6   III. CAT

 7       Finally, Singh argues that the IJ failed to do a

 8   complete CAT analysis.    However, as the BIA found, Singh

 9   failed to meaningfully challenge the denial of CAT relief

10   before the BIA.   Because the claim is not exhausted, we lack

11   jurisdiction to review it.    See 8 U.S.C. § 1252(d)(1); see

12   also Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   DISMISSED in part and DENIED in part.    As we have completed

15   our review,the pending motion for a stay of removal in this

16   petition is DISMISSED as moot.

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19




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