     15-1244
     Gurbax-Singh v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 595 756
                             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   14th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DENNIS JACOBS,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   FNU GURBAX-SINGH, AKA GURBAX
15   SINGH,
16            Petitioner,
17
18                    v.                                             15-1244
19                                                                   NAC
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Genet Getachew, Law Office of Genet
26                                       Getachew, Brooklyn, New York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Justin
30                                       Markel, Nancy E. Friedman, Senior
31                                       Litigation Counsel, Office of
32                                       Immigration Litigation, United
33                                       States Department of Justice,
34                                       Washington, D.C.
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 FNU Gurbax-Singh, a native and citizen of India,

6    seeks review of a March 19, 2015, decision of the BIA affirming

7    a January 18, 2013, decision of an Immigration Judge (“IJ”)

8    denying Gurbax-Singh’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).   In re FNU Gurbax-Singh, No. A200 595 756 (B.I.A. Mar.

11   19, 2015), aff’g No. A200 595 756 (Immig. Ct. N.Y. City Jan.

12   18, 2013).       We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

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

15   the sake of completeness.”     Wangchuck v. DHS, 448 F.3d 524, 528

16   (2d Cir. 2006).     The applicable standards of review are well

17   established.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

18   Mukasey,   534   F.3d   162,   165-66   (2d   Cir.   2008).   Asylum

19   applications such as Gurbax-Singh’s are governed by the REAL

20   ID Act, which provides that the agency, “[c]onsidering the

21   totality of the circumstances . . . may base a credibility

22   determination on” inconsistencies in an applicant’s statements

                                       2
1    and other record evidence “without regard to whether” those

2    inconsistencies go “to the heart of the applicant’s claim.”

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

4          Gurbax-Singh argues that the IJ should not have relied on

5    the record of the credible fear interview to find him not

6    credible, and that the IJ improperly analyzed his demeanor.             As

7    the Government points out, Gurbax-Singh raised no demeanor

8    challenge before the BIA, and thus failed to exhaust this issue.

9    Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

10   Cir. 2007).      In any event, the IJ did not rely on demeanor in

11   making the adverse credibility determination.                Gurbax-Singh

12   has waived any challenge to the remainder of the IJ’s findings

13   by failing to challenge them in his brief, and they supply

14   sufficient basis, for the adverse credibility determination.

15   See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

16         We conclude that the IJ reasonably relied on the record of

17   the   credible    fear    interview       in   finding   Gurbax-Singh   not

18   credible.     We require the agency to “closely examine each . .

19   . interview before concluding that it represents a sufficiently

20   accurate    record       of   the   alien’s       statements    to   merit

21   consideration in determining whether the alien is credible.”

22   Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004);

                                           3
1    Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).                         A

2    credible fear interview is sufficiently reliable if it contains

3    a “‘verbatim account or transcript’ of the alien’s statements,”

4    was “‘designed to elicit the details of an asylum claim,’” and

5    contains no indication that the alien revealed information

6    reluctantly     or     failed    to     understand         the    interpreter’s

7    translations.        Ming Zhang, 585 F.3d at 721 (quoting Guan v.

8    Gonzales, 432 F.3d 391, 396 (2d Cir. 2005)).

9        Here,     the     IJ    conducted       a    lengthy    analysis    of    the

10   reliability    of     the    interview          record,     and    found   that:

11   Gurbax-Singh    had     a    Punjabi    interpreter        and    expressed    no

12   difficulties    understanding          the      interpreter;      although    the

13   transcript is not verbatim, it gives the questions asked and

14   Gurbax-Singh’s responses, and reveals that Gurbax-Singh was

15   given an opportunity to provide the details of his claim; and

16   Gurbax-Singh did not allege that any portion of the interview

17   record was inaccurate or that he was coerced into providing

18   specific answers.           Gurbax-Singh’s attorney objected to the

19   admission of the interview only solely on the ground that she

20   had not had a chance to review it prior to the hearing, not

21   because the record was unreliable.                Given these facts, the IJ

22   did not err in relying on the interview record in addressing

                                             4
 1   Gurbax-Singh’s credibility.      See Ming Zhang, 585 F.3d at 721,

 2   725.

 3          Gurbax-Singh’s brief argues that the record is unreliable

 4   because he was not allowed to review it before he signed it.

 5   He raises this issue for the first time in this Court.

 6   Accordingly, it is unexhausted and we decline to address it.

 7   Lin Zhong, 480 F.3d at 123.

 8          Moreover, the inconsistency between the credible fear

9    interview and Gurbax-Singh’s testimony supports the adverse

10   credibility determination.       Xiu Xia Lin, 534 F.3d at 163-64.

11   During the credible fear interview Gurbax-Singh reported one

12   arrest and beating by police in January 2009.           However, he

13   testified that he was beaten three times in 2007, 2008, and 2009,

14   and that he was never harmed in January 2009.       The IJ was not

15   required to credit Gurbax-Singh’s explanation that he was

16   confused and forgot, as it did not resolve why Gurbax-Singh’s

17   memory was improved two years after the interview.        Majidi v.

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

19          Given the IJ’s reasonable reliance on the credible fear

20   interview, and Gurbax-Singh’s failure to challenge any of the

21   IJ’s    additional   findings,   the   IJ’s   adverse   credibility

22   determination is supported by substantial evidence.             See

                                       5
1    8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66.   The

2    adverse credibility determination is dispositive of asylum,

3    withholding of removal, and CAT relief because all three claims

4    were based on the same factual predicate.    Paul v. Gonzales,

5    444 F.3d 148, 156-57 (2d Cir. 2006).

6        For the foregoing reasons, the petition for review is

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

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

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

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

11   in this petition is DENIED in accordance with Federal Rule of

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

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O=Hagan Wolfe, Clerk




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