     16-161
     Singh v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A201 106 151
                              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   12th day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            ROBERT D. SACK,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   RAJINDERPAL SINGH,
14            Petitioner,
15
16                       v.                                          16-161
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; Paul
28                                       Fiorino, Senior Litigation Counsel;
29                                       Judith R. O’Sullivan, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       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 Rajinderpal Singh, a native and citizen of

6    India, seeks review of a December 23, 2015, decision of the BIA,

7    affirming a March 26, 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 Rajinderpal Singh, No. A201 106 151 (B.I.A. Dec.

11   23, 2015), aff’g No. A201 106 151 (Immig. Ct. N.Y. City Mar.

12   26, 2014).       We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).     The    applicable   standards   of   review   are   well

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

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

20       For asylum applications like Singh’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on inconsistencies

                                      2
1    in an applicant’s statements and evidence, “without regard to

2    whether” those inconsistencies go “to the heart of the

3    applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

4    Lin, 534 F.3d at 163-64.   “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    Substantial evidence supports the adverse credibility

9    determination.

10       The agency reasonably relied on inconsistencies concerning

11   Singh’s date of birth.      See 8 U.S.C. § 1158(b)(1)(B)(iii).

12   Singh testified that he was born on December 8, 1997, then

13   changed the year to 1976, and ultimately landed on 1977.       The

14   IJ reasonably rejected Singh’s explanation that the wrong dates

15   “just came out of [his] mouth” because, as the IJ explained,

16   a discrepancy concerning “one of the most basic facts” about

17   him “called into question [his] actual identity” as well as “the

18   veracity of the entire claim.”   See Majidi v. Gonzales, 430 F.3d

19   77, 80 (2d Cir. 2005) (“A petitioner must do more than offer

20   a plausible explanation for his inconsistent statements to

21   secure   relief;   he   must   demonstrate   that   a   reasonable

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

                                      3
1    (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 77, 76 (2d Cir.

2    2004))).

3        The     agency   also    reasonably    relied   on     the   several

4    inconsistencies concerning the only two incidents of alleged

5    persecution in August and November 2010—events central to his

6    claim.    See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

7    289, 295 (2d Cir. 2006) (“[A] material inconsistency in an

8    aspect of [an applicant’s] story that served as an example of

9    the very persecution from which he sought asylum . . . afforded

10   substantial    evidence     to   support   the   adverse    credibility

11   finding.”).

12       First, Singh provided inconsistent statements about his

13   injuries.     Singh testified that he suffered injuries to his

14   feet, head, and back following the August 2010 attack, but his

15   father’s affidavit added that Singh fractured both legs.            When

16   confronted with this discrepancy, Singh explained that his legs

17   were almost fractured, that he was unable to walk for up to 20

18   days, and speculated that his father’s illiteracy prevented him

19   from articulating that nuance.          The IJ was not compelled to

20   accept this explanation given that Singh’s testimony gave no

21   indication of the supposed severity of the injury to his legs.

22   See Majidi, 430 F.3d at 80.       This inconsistency was compounded

                                         4
1    by the omission of the leg injuries from Singh’s application

2    and from an August 2010 hospital record.        See Xiu Xia Lin, 534

3    F.3d    at   166   n.3   (“An   inconsistency    and     an     omission

4    are . . . functionally      equivalent.”).       Singh        could   not

5    explain the omission from his application and instead stated

6    that he was told he sustained head and leg injuries.             And the

7    IJ was not compelled to accept Singh’s explanation—that while

8    he was held in the hospital for 48 hours, he was unable to walk

9    for up to 20 days—because it failed to account for the stark

10   discrepancy in the description of the injuries and his omission

11   of the leg injuries from his asylum application.          See Majidi,

12   430 F.3d at 80.

13          The agency also reasonably relied on Singh’s internally

14   inconsistent testimony concerning who visited him in the

15   hospital in August 2010.         8 U.S.C. S 1158(b)(1)(B)(iii).

16   Singh initially testified that he had no visitors; when pressed,

17   he stated that “some relatives” visited, and later added a visit

18   from the head of his political party.

19          As the agency found, Singh’s credibility was further

20   undermined by inconsistencies between his testimony and an

21   affidavit from the village head.      Singh testified that after

22   his November 2010 beating, he, his father, and the village head

                                       5
1    attempted to file a police report.           When asked why the village

2    head’s affidavit omitted this information (and the November

3    2010 incident altogether), Singh responded that it was “normal”

4    for the village head to accompany villagers to the police (and,

5    presumably, not worth mentioning in the affidavit).               The IJ

6    reasonably rejected this explanation given the severity of the

7    beating and the fact that Singh’s cousin allegedly was killed

8    in the same incident.        See Majidi, 430 F.3d at 80.         Moreover,

9    the village head’s affidavit and Singh’s testimony were

10   inconsistent in another way: the affidavit reflected that Singh

11   and his family members were kidnapped, but Singh denied this.

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

13   threats of kidnapping and kidnapping were the same because it

14   failed to explain the inconsistency given that the affidavit

15   mentioned both kidnapping and threats.            Id.

16       Given    the   multiple     inconsistencies     identified,     which

17   primarily concerned Singh’s alleged past persecution, it cannot

18   be said “that no reasonable fact-finder could make such a

19   credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.           Contrary

20   to Singh’s position in his brief, the adverse credibility

21   determination      applies    to   both   the    August    and   November

22   incidents.      Accordingly,       because    asylum,     withholding   of

                                          6
1    removal, and CAT relief were all based on the same factual

2    predicate,     the   adverse   credibility   determination      is

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

4    2006).

5        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

12   34.1(b).

13                                  FOR THE COURT:
14                                  Catherine O’Hagan Wolfe, Clerk




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