BIKRAMJIT SINGH v. JEFFERSON SESSIONS III UNITED STATES ATTORNEY GENERAL

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United States Court of Appeals, Second Circuit.

BIKRAMJIT SINGH, Petitioner, v. JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent.

15-4111

Decided: July 10, 2017

PRESENT: DENNIS JACOBS, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges. FOR PETITIONER: Jaspreet Singh, Jackson Heights, New York. FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Kimberly A. Burdge, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

Petitioner Bikramjit Singh, a native and citizen of India, seeks review of a November 27, 2015 decision of the BIA affirming a May 6, 2015 decision of an Immigration Judge (“IJ”) denying Singh's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bikramjit Singh, No. A205 934 797 (B.I.A. Nov. 27, 2015), aff'g No. A205 934 797 (Immig. Ct. N.Y.C. May 6, 2015). Where, as here, the BIA does not expressly “adopt” the IJ's decision, but closely tracks its reasoning, we review both the IJ's and the BIA's opinions “for the sake of completeness,” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well-established standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). We assume the parties' familiarity with the underlying facts and procedural history in this case.

In assessing an asylum applicant's credibility, the agency may, “considering the totality of the circumstances,” base an adverse determination on the applicant's “demeanor, candor, or responsiveness,” inconsistencies between an applicant's oral and written statements, and inconsistencies between an applicant's statements and other record evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We defer ․ to an IJ's credibility determination unless ․ it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

Substantial evidence supports the agency's conclusion that Singh was not credible. The agency identified multiple inconsistencies between Singh's testimony, asylum application, and other record evidence regarding significant aspects of his claim, including the number of times he was attacked, the date he joined the Akali Dal Mann Party and began receiving threats from the Badal Party, and whether the police beat him in September 2012. These inconsistencies are reflected in the record, and Singh's proffered justifications compel no different result. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

Singh nevertheless faults the agency's adverse credibility determination, arguing that a Mann Party letter—which was deemed inconsistent with Singh's testimony regarding the beatings—was based upon secondhand and possibly inaccurate information. The argument fails because Singh testified that the letter's author was aware of everything that had happened to Singh. As for Singh's omission of certain beatings, even if this was inadvertent, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006) (holding asylum applicant not required to list all instances of persecution), that would not bear on inconsistencies in and between his accounts of a September 2012 encounter with the police, see Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (concluding that petitioner's “asylum application did not simply omit incidents of persecution” but rather “described the same incidents of persecution differently”). Nor would it mitigate Singh's initial failure to discuss purported threats beginning in 2010—two years before the first alleged attack and a year before he claimed to have joined the Mann Party. See Xiu Xia Lin, 534 F.3d at 166 n.3 (observing that inconsistency and omission are “functionally equivalent” for credibility purposes).

The adverse credibility determination was bolstered by Singh's submission of affidavits—from two different individuals—that employed nearly identical language. See Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding adverse credibility determination based in part on “nearly identical language” in affidavits). Singh's contention that the similarity is explained by the use of the same translator is not compelling because Singh testified that the affiants prepared the documents independently, and the affidavits themselves do not acknowledge assistance in preparation. See Majidi, 430 F.3d at 80-81.

Finally, the agency's reliance on Singh's demeanor in finding him not credible was supported by Singh's nonresponsive answers on cross examination. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (concluding that petitioner's evasive and nonresponsive testimony supported adverse credibility ruling).

Given the various concerns raised by Singh's testimony, statements, and evidence, we conclude that the totality of the circumstances supports the agency's adverse credibility ruling. See Xiu Xia Lin, 534 F.3d at 167. Because Singh's claims for relief were all based on the same factual predicate, the adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court