     18-372
     Singh v. Barr
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A205 421 884
                          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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 22nd day of January, two thousand twenty.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   AMANPREET SINGH,
14
15                   Petitioner,
16
17                   v.                                          18-372
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                  Amy Nussbaum Gell, Gell & Gell,
26                                    New York, NY.
27
28   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
29                                    Attorney General; Bernard A.
30                                    Joseph, Senior Litigation Counsel;
31                                    Jonathan K. Ross, Trial Attorney,
1                                     Office of Immigration Litigation,
2                                     United States Department of
3                                     Justice, Washington, DC.
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 GRANTED.

9           Petitioner Amanpreet Singh, a native and citizen of

10   India, seeks review of a January 11, 2018, decision of the

11   BIA affirming an April 5, 2017, decision of an Immigration

12   Judge (“IJ”) denying his application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).     In re Singh, No. A 205 421 884 (B.I.A. Jan. 11,

15   2018), aff’g No. A 205 421 884 (Immig. Ct. N.Y. City Apr. 5,

16   2017).      We    assume   the    parties’       familiarity      with   the

17   underlying facts and procedural history in this case.

18          We have reviewed the IJ’s decision as modified by the

19   BIA;    i.e.,    minus   the   IJ’s       finding   that   even    assuming

20   credibility, Singh did not establish eligibility for asylum

21   and related relief.        See Xue Hong Hang v. U.S. Dep’t of

22   Justice, 426 F.3d 520, 522 (2d Cir. 2005).             The standards of

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

                                           2
1    Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)

2    (reviewing adverse credibility determination for substantial

3    evidence).     “Considering the totality of the circumstances,

4    and    all   relevant   factors,    a    trier    of   fact    may   base   a

5    credibility determination on . . . the consistency between

6    the applicant’s . . . written and oral statements . . . , the

7    internal     consistency   of     each   such     statement,     [and]    the

8    consistency of such statements with other evidence of record

9    . . . without regard to whether an inconsistency, inaccuracy,

10   or falsehood goes to the heart of the applicant’s claim . .

11   . .”    8 U.S.C. § 1158(b)(1)(B)(iii).             We conclude that the

12   agency has not identified substantial evidence to support the

13   adverse credibility determination.

14          The agency based its adverse credibility determination

15   on two claimed inconsistencies.          First, the agency identified

16   one    inconsistency    between    Singh’s      testimony     that   he   was

17   treated with painkillers for his injuries and a medical report

18   that indicated that he received painkillers, antibiotics, and

19   intravenous     fluids.     Second,       while    Singh      testified     he

20   informed S. Narinder Singh, a leader of the political party

21   Singh belonged to, about the two attacks, the agency relied

                                         3
1    on the fact that a letter from S. Narinder Singh did not

2    specifically mention his attacks by members of a rival party,

3    instead it only confirmed Singh’s party membership and that

4    Singh had been persecuted by a rival political party.                            We

5    have cautioned against putting excessive weight on a third-

6    party’s omissions, particularly where, as here, the third

7    party’s    statement       does        not    contradict         the   applicant’s

8    statements.     See Hong Fei Gao, 891 F.3d at 81 (“Although an

9    omission by a third party may form a basis for an adverse

10   credibility determination . . . under these circumstances—

11   where a third party’s omission creates no inconsistency with

12   an   applicant’s     own    statements—an            applicant’s       failure   to

13   explain     third-party       omissions             is    less     probative     of

14   credibility than an applicant’s failure to explain his or her

15   own omissions.”).

16        Given the agency’s error in relying on this finding, we

17   conclude    that    remand        is     necessary        because      the   single

18   inconsistency regarding Singh’s medical treatment does not,

19   under     the   totality      of        the    circumstances,           constitute

20   substantial        evidence        for         an        adverse       credibility

21   determination.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei

                                              4
1    Gao, 891 F.3d at 76; cf. Xiu Xia Lin v. Mukasey, 534 F.3d

2    162, 167 (2d Cir. 2008) (“an IJ may rely on any inconsistency

3    or omission in making an adverse credibility determination as

4    long as the ‘totality of the circumstances’ establishes that

5    an   asylum      applicant     is       not         credible.”      (quoting

6    § 1158(b)(1)(B)(iii))).        Because        the    adverse     credibility

7    determination was the sole basis for the agency’s denial of

8    Singh’s claim of past persecution, we remand for further

9    consideration of whether Singh met his burden of proof for

10   past persecution, such that he is entitled to a presumption

11   of future persecution.       See 8 C.F.R. § 1208.13(b)(1).

12        For the foregoing reasons, the petition for review is

13   GRANTED, the BIA’s decision is VACATED, and the case is

14   REMANDED   for   further     proceedings        consistent       with   this

15   order.

16                                   FOR THE COURT:
17                                   Catherine O’Hagan Wolfe,
18                                   Clerk of Court




                                         5
