Singh v. Lynch

14-4272 Singh v. Lynch BIA Vomacka, IJ A087 997 710 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 16th day of February, two thousand sixteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SIMARGID SINGH, 14 Petitioner, 15 16 v. 14-4272 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard W. Chen, New York, 24 New York. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney General; 28 Blair T. O’Connor, Assistant 29 Director; Joseph D. Hardy, Trial  1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Simargid Singh, a native and citizen of

11 India, seeks review of an October 15, 2014, decision of the

12 BIA, affirming a July 31, 2013, decision of an Immigration

13 Judge (“IJ”) denying Singh’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Simargid Singh, No. A087

16 997 710 (B.I.A. Oct. 15, 2014), aff’g No. A087 997 710

17 (Immig. Ct. N.Y. City July 31, 2013). We assume the

18 parties’ familiarity with the underlying facts and

19 procedural history in this case.

20 Under the circumstances of this case, we have

21 considered the IJ’s decision as modified by the BIA, i.e.,

22 minus the IJ’s findings that the BIA explicitly declined to

23 consider in affirming the adverse credibility

24 determination. See Xue Hong Yang v. U.S. Dep’t of Justice,

25 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards

2  1 of review are well established. 8 U.S.C. § 1252(b)(4)(B);

2 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

3 2008). The agency may, “[c]onsidering the totality of the

4 circumstances,” base a credibility finding on an asylum

5 applicant’s demeanor and inconsistencies in his statements

6 and other record evidence “without regard to whether” they

7 go “to the heart of the applicant’s claim.” 8 U.S.C.

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

9 Substantial evidence supports the agency’s determination

10 that Singh was not credible.

11 The agency reasonably relied on Singh’s demeanor,

12 noting that his testimony was often unresponsive. See

13 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,

14 430 F.3d 77, 81 n.1 (2d Cir. 2005). That finding is

15 supported by the record.

16 The agency’s demeanor finding and the overall

17 credibility determination are bolstered by record

18 inconsistencies. See Li Hua Lin v. U.S. Dep’t of Justice,

19 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534

20 F.3d at 165-67. For example, Singh testified that he was

21 beaten on three separate occasions (once while shopping

22 near a political rally, once while attending a political

3  1 meeting, and a third time in his parents’ home), but in his

2 asylum application and during his credible fear interview,

3 he discussed only two attacks (at the political meeting and

4 at his parents’ home). See Xiu Xia Lin, 534 F.3d at 164,

5 166-67 & n.3. Further, Singh testified to a significant

6 wrist injury suffered during one of the attacks, but he had

7 not mentioned the injury in either his application or

8 credible fear interview. See Xiu Xia Lin, 534 F.3d at 166

9 n.3. Singh did not provide a compelling explanation for

10 any of the record inconsistencies. See Majidi v. Gonzales,

11 430 F.3d 77, 80 (2d Cir. 2005).

12 The agency also reasonably relied on the vagueness of

13 Singh’s testimony, despite efforts to elicit more details.

14 See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.

15 2003) (“Where an applicant gives very spare testimony, as

16 here, the IJ . . . may fairly wonder whether the testimony

17 is fabricated . . . [and] may wish to probe for incidental

18 details.”), overruled in part on other grounds by Shi Liang

19 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

20 Cir.2007). He could not provide any details as to how many

21 people attacked him, or what month or time of year the

22 attacks occurred.

4  1 Having questioned Singh’s credibility, the IJ

2 reasonably relied further on his failure to provide certain

3 corroborating evidence to rehabilitate his testimony. See

4 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

5 Singh did not provide any medical documentation from India

6 or the United States to corroborate his alleged injuries.

7 He also did not corroborate his religious practice in the

8 United States, although he testified that he attends

9 services twice a day, every day. See Chuilu Liu v. Holder,

10 575 F.3d 193, 198 (2d Cir. 2009) (“[T]he alien bears the

11 ultimate burden of introducing such evidence without

12 prompting from the IJ.”).

13 Given the demeanor, inconsistency, vagueness, and

14 corroboration findings, the agency’s adverse credibility

15 determination is supported by substantial evidence, and is

16 dispositive of Singh’s claims for asylum, withholding of

17 removal, and CAT relief. See 8 U.S.C.

18 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156-

19 57 (2d Cir. 2006). We do not consider Singh’s ineffective

20 assistance claim because he did not exhaust it before the

21 BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

22 107 n.1, 118-24 (2d Cir. 2007).

5  1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request

6 for oral argument in this petition is DENIED in accordance

7 with Federal Rule of Appellate Procedure 34(a)(2), and

8 Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk

6