     15-2419
     Singh v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A201 292 537
                              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   21st day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   KARNAIL SINGH,
14            Petitioner,
15
16                       v.                                          15-2419
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Jaspreet Singh, Jackson Heights, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; John S.
27                                       Hogan, Assistant Director; Andrea N.
28                                       Gevas, Trial Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
32
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 Karnail Singh, a native and citizen of India,

6    seeks review of a July 2, 2015, decision of the BIA affirming

7    a February 24, 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 Karnail Singh, No. A201 292 537 (B.I.A. July 2, 2015), aff’g

11   No. A201 292 537 (Immig. Ct. N.Y. City Feb. 24, 2014).          We assume

12   the    parties’    familiarity   with   the   underlying    facts    and

13   procedural history in this case.

14          We have considered both the IJ’s and the BIA’s opinions “for

15   the sake of completeness.”        Wangchuck v. Dep’t of Homeland

16   Sec., 448 F.3d 524, 528 (2d Cir. 2006).              The applicable

17   standards of review are well established.                See 8 U.S.C.

18   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

19   Cir. 2009).

20          Under the REAL ID Act of 2005, the agency may, in light of

21   “the    totality    of   the   circumstances,”    base     an    adverse

22   credibility determination on an asylum applicant’s “demeanor,

23   candor, or responsiveness,” the plausibility of his account,
                                   2
1    and    inconsistencies     in     his    statements.      8      U.S.C.

2    § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,

3    165 (2d Cir. 2008)(per curiam).          In conducting “substantial

4    evidence” review, “we defer . . . to an IJ’s credibility

5    determination unless, from the totality of the circumstances,

6    it is plain that no reasonable fact-finder could make such an

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

8          The adverse credibility determination against Singh rests

9    on substantial evidence.        Singh’s testimony diverged from his

10   asylum application in material ways.        He testified that he was

11   beaten   four   times,   but    his   application   identified    three

12   beatings.   Singh later testified that he was beaten only three

13   times, and explained that the first incident he had alluded to,

14   in August 2010, involved threats, not physical abuse, and hence

15   he did not include it on his asylum application.        A reasonable

16   adjudicator would not be compelled to credit this explanation;

17   as the IJ noted, the first occurrence purportedly marked the

18   start of his mistreatment at the hands of the Congress Party.

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

20         Singh’s testimony about his January 12, 2011 beating was

21   fraught with confusion.        He variously testified that he went

22   to the hospital straight after he had been beaten up, he took

23   medication from the hospital before he went to the police
                                   3
1    station, he took homemade medication before he went to the

2    police station, and he was arrested and taken to the police

3    station before he went to the hospital.      Similarly, he

4    variously testified that he was never arrested, he was arrested

5    and beaten with sticks at the police station, and the Congress

6    Party beat him with sticks.     He testified that he went to the

7    police station to give a report, but the police did not listen

8    to him, but moments later testified that after the Congress

9    Party made a complaint against him, the police arrested him.

10   Finally, his asylum application stated that after the January

11   12, 2011 incident with Congress Party members, he was held

12   overnight.    However, he variously testified that he was at the

13   police station for two to three hours, he was held for four hours

14   in the evening and released the next day, and he was assaulted

15   by Congress Party members in the morning and arrested

16   afterwards.

17        These    inconsistencies     amply   support   the   adverse

18   credibility determination.      Xiu Xia Lin, 534 F.3d at 167.   In

19   his petition for review, Singh explains that he felt intimidated

20   on cross-examination.    The agency was not compelled to accept

21   that explanation.    Majidi, 430 F.3d at 80.    Moreover, as the

22   BIA noted, several of the inconsistencies outlined above arose

23   during direct examination by Singh’s own attorney.
                                   4
1        Singh challenges the agency’s decision to give diminished

2    weight to his documentary evidence.    “We defer to the agency’s

3    determination of the weight afforded to an alien’s documentary

4    evidence.”   Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

5    The reason given here--the authors were unavailable for

6    cross-examination--was a proper basis for the exercise of the

7    agency’s discretion, particularly in light of the adverse

8    credibility determination.   Siewe v. Gonzales, 480 F.3d 160,

9    170 (2d Cir. 2007) (“[A] single false document or a single

10   instance of false testimony may (if attributable to the

11   petitioner) infect the balance of the alien’s uncorroborated

12   or unauthenticated evidence.”).

13       Singh argues that the agency had to analyze his CAT claim

14   separately, and cites background evidence of prisoner suicides

15   while in Indian police custody as warranting CAT relief.     If

16   a CAT claim is based on the same facts that the agency found

17   not credible in analyzing the asylum claim, that credibility

18   determination is dispositive.   See Xue Hong Yang v. U.S. Dep’t

19   of Justice, 426 F.3d 520, 523 (2d Cir. 2005); Paul v. Gonzales,

20   444 F.3d 148, 156-57 (2d Cir. 2006).    That rule applies here:

21   Singh claims he will be tortured based on his past incidents

22   with the Congress Party and police, but the agency discredited

23   his testimony that those incidents ever occurred.          That
                                5
1    credibility determination was fatal to his CAT claim.

2        For the foregoing reasons, the petition for review is

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

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

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

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

7    this petition is DENIED in accordance with Federal Rule of

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

9    34.1(b).

10                                 FOR THE COURT:
11                                 Catherine O=Hagan Wolfe, Clerk




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