     15-1804
     Singh v. Lynch
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A200 291 187
                           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   15th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   NAMINDER SINGH,
14            Petitioner,
15
16                    v.                                             15-1804
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   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;
27                                       Jennifer P. Williams, Senior
28                                       Litigation Counsel; Raya Jarawan,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 Naminder Singh, a native and citizen of India,

6    seeks review of a May 4, 2015 decision of the BIA affirming a

7    September 11, 2013, 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 Naminder Singh, No. A200 291 187 (B.I.A. May 4, 2015), aff’g

11   No. A200 291 187 (Immigr. Ct. N.Y.C. Sept. 11, 2013).             We assume

12   the    parties’    familiarity     with   the   underlying    facts    and

13   procedural history in this case.

14          We consider the IJ’s decision “as modified by the BIA’s

15   decision.”    Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

16   520, 522 (2d Cir. 2005).         The applicable standards of review

17   are well established.          See 8 U.S.C. § 1252(b)(4)(B); Yanqin

18   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

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

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

21   credibility determination on an applicant’s “demeanor, candor,
                                         2
1    or responsiveness,” the plausibility of his account, and

2    inconsistencies in his statements, “without regard to whether”

3    those inconsistencies go “to the heart of the applicant’s

4    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

5    534 F.3d 162, 165 (2d Cir. 2008).       Under the “substantial

6    evidence” standard of review, “we defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder could

9    make such an adverse credibility ruling.”   Xiu Xia Lin, 534 F.3d

10   at 166-67.

11       Here, the ruling is sound, “based on specific examples in

12   the record of ‘inconsistent statements’ by” Singh “about

13   matters material to his claim of persecution,” namely when the

14   alleged attacks occurred.    Zhou Zhang v. INS, 386 F.3d 66, 74

15   (2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.

16   U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).        Singh

17   testified that Congress Party motorcyclists attacked him in

18   April 2011, but his written application said that the attack

19   occurred in March 2010.   His explanation for this inconsistency

20   was that his grandmother had passed away recently.    Similarly,

21   he testified that the police beat him in March 2011, but his
                                     3
1    written statement stated that the beating occurred in April

2    2010.    His explanation for that inconsistency was that he was

3    nervous.      The agency was not compelled to credit these

4    explanations, which were not entirely consistent with each

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

6    (explaining that the agency is not required to credit an

7    explanation that is merely plausible or possible).

8        Singh argues that “the BIA failed to consider the time frame

9    between     [the   two]   incidents   and    [the]   totality   of

10   circumstances[,] including the death of [his] grandmother.”

11   But the agency considered--and rejected--his explanations.

12   Singh’s counsel also cites a Ninth Circuit decision addressing

13   trauma victims’ faulty memories.      But Singh did not testify

14   that trauma caused his confusion, and “[a]n attorney’s unsworn

15   statements in a brief are not evidence.”      Kulhawik v. Holder,

16   571 F.3d 296, 298 (2d Cir. 2009).           Even if Singh had so

17   testified, the IJ would not have been obligated to credit that

18   explanation, which does not account for why he recalled the

19   correct dates when writing his asylum application.    Majidi, 430

20   F.3d at 80.


                                     4
1          Singh argues that “if the IJ decides that the applicant

2    should provide corroboration, the applicant must then have an

3    opportunity to provide it, or explain that he does not have it

4    and ‘cannot reasonably obtain it.’”    He extracts this rule from

5    the following passage of the INA: “Where the trier of fact

6    determines that the applicant should provide evidence that

7    corroborates otherwise credible testimony, such evidence must

8    be provided unless the applicant does not have the evidence and

9    cannot   reasonably    obtain    the   evidence.”        8     U.S.C.

10   § 1158(b)(1)(B)(ii)(emphasis      added).      Singh’s       argument

11   overlooks the critical phrase: “otherwise credible testimony.”

12   The IJ need not take these additional steps where, as here, the

13   IJ’s concerns about corroboration are tied to testimony the IJ

14   does not credit.    Xiao Ji Chen v. U.S. Dep’t of Justice, 471

15   F.3d 315, 341 (2d Cir. 2006); see Biao Yang v. Gonzales, 496

16   F.3d 268, 273 (2d Cir. 2007) (observing that an applicant’s

17   failure to corroborate may bear on credibility, either because

18   the absence of particular evidence is viewed as suspicious or

19   its   absence   prevents   the   applicant   from   rehabilitating

20   testimony already called into question).


                                      5
1           Given the inconsistencies that cast doubt on whether Singh

2    suffered the critical incidents of alleged persecution and the

3    lack    of    corroborating   evidence,    the   totality   of   the

4    circumstances      supports   the   agency’s   adverse   credibility

5    determination.      Singh’s applications for asylum, withholding

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

7    predicate, and so the adverse credibility determination was

8    dispositive as to all three.        See Paul v. Gonzales, 444 F.3d

9    148, 156-57 (2d Cir. 2006).

10          For the foregoing reasons, the petition for review is

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

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

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

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

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

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

17   34.1(b).

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




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