Singh v. Bondi

2

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 1 Attorney General; Michael C. Heyse, Senior 2 Litigation Counsel; Karen L. Melnik, Senior 3 Trial Attorney; Office of Immigration 4

Litigation, United States Department of 5

Justice, Washington, DC. 6

UPON DUE CONSIDERATION of this petition for review of a Board of 7

Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND 8 DECREED that the petition for review is DENIED. 9

Petitioner Kulwant Singh, a native and citizen of India, seeks review of a 10 March 14, 2023, decision of the BIA affirming a May 13, 2019, decision of an 11 Immigration Judge ("IJ") denying his application for asylum, withholding of 12 removal, and relief under the Convention Against Torture ("CAT"). In re Kulwant 13 Singh, No. A 206-469-407 (B.I.A. Mar. 14, 2023), aff'g No. A 206-469-407 (Immig. Ct. 14 N.Y. City May 13, 2019). We assume the parties' familiarity with the underlying 15 facts and procedural history. 16

Under the circumstances, we have reviewed the IJ's decision as 17 supplemented by the BIA but as limited to the grounds for the IJ's decision that 18 the BIA reached and relied on. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 19 2005). We review fact-finding, including an adverse credibility determination, 20

"under the substantial evidence standard," and we review questions of law and 21

3

the application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 1 Cir. 2018). "[T]he administrative findings of fact are conclusive unless any 2 reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. 3 § 1252(b)(4)(B). 4

Considering the totality of the circumstances, and all relevant factors, 5 a trier of fact may base a credibility determination on the demeanor, 6 candor, or responsiveness of the applicant or witness, the inherent 7 plausibility of the applicant's or witness's account, the consistency 8 between the applicant's or witness's written and oral statements 9 (whenever made and whether or not under oath, and considering the 10 circumstances under which the statements were made), the internal 11 consistency of each such statement, [and] the consistency of such 12 statements with other evidence of record . . . without regard to 13 whether an inconsistency, inaccuracy, or falsehood goes to the heart 14 of the applicant's claim, or any other relevant factor. 15

Id. § 1158(b)(1)(B)(iii). "We defer . . . to an IJ's credibility determination unless, 16 from the totality of the circumstances, it is plain that no reasonable fact-finder 17 could make such an adverse credibility ruling." Xiu Xia Lin v. Mukasey, 534 F.3d 18

4

162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence 1 supports the agency's conclusion that Singh was not credible. 2 The IJ identified multiple bases for the adverse credibility determination—3 namely, Singh's demeanor, his evolving asylum claim, vague and implausible 4 testimony, and lack of corroboration to rehabilitate his credibility. The record 5 supports these findings. 6

First, we defer to the IJ's demeanor finding "in recognition of the fact that 7 the IJ's ability to observe the witness's demeanor places her in the best position to 8 evaluate whether apparent problems in the witness's testimony suggest a lack of 9 credibility or, rather, can be attributed to an innocent cause such as difficulty 10 understanding the question." Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d 11 Cir. 2005). The record supports the finding. As the IJ observed, Singh's demeanor 12 changed from direct to cross-examination. While his testimony on direct was 13 nearly identical to his written statement, his testimony on cross was vague and 14 non-responsive at times. See Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020) 15 (deferring to agency's demeanor assessment that was based on observations that 16 the petitioner was "sometimes 'non-responsive' to questions"); Majidi v. Gonzales, 17

430 F.3d 77, 81 n.1 (2d Cir. 2005) (acknowledging that IJs are generally in the best 18

5

position to decide whether a witness understood questions). 1 Second, the demeanor finding is bolstered by Singh's inconsistent testimony 2 about which political party he feared. See Li Hua Lin v. U.S. Dep't of Justice, 453 3 F.3d 99, 109 (2d Cir. 2006) ("We can be still more confident in our review of 4 observations about an applicant's demeanor where, as here, they are supported by 5 specific examples of inconsistent testimony."). While Singh's application and 6 written statement provided that he feared supporters of Dera Sacha Sauda, he 7 testified that he also feared the Congress Party and the Bharatiya Janata Party 8 because he was a supporter of the Mann Party. Singh did not respond when asked 9 why he did not mention his own support of the Mann Party in his written 10 statements. Cf. Majidi, 430 F.3d at 80 ("A petitioner must do more than offer a 11 plausible explanation for his inconsistent statements to secure relief; he must 12 demonstrate that a reasonable fact-finder would be compelled to credit his 13 testimony." (quotation marks omitted)). Relatedly, the IJ reasonably relied on this 14

"evolving" nature of Singh's claim in reaching the adverse credibility 15 determination. That is, his application reflected only a fear of DSS, while he 16 testified to fearing the other parties and added that he supported and worked for 17 the Mann Party. Given his testimony that his fear was based on his support for 18

6

the Mann Party, his support and work for the party are facts he would have 1

"reasonably . . . been expected to disclose" in his application. Hong Fei Gao, 891 2 F.3d at 78 ("[T]he probative value of a witness's prior silence on particular facts 3 depends on whether those facts are ones the witness would reasonably have been 4 expected to disclose."). 5

Third, the record supports the IJ's conclusion that some of Singh's testimony 6 was vague and implausible. "A fact finder may understandably find detailed 7 testimony more convincing than vague testimony." Shunfu Li v. Mukasey, 529 F.3d 8 141, 147 (2d Cir. 2008). Although "a finding of testimonial vagueness cannot, 9 without more, support an adverse credibility determination," it can where 10

"government counsel or the IJ first attempts to solicit more detail." Id. Singh's 11 testimony was vague, despite the IJ's attempts to elicit further detail from him. For 12 example, Singh testified that he lived in England for years, rarely left his house, 13 but did a bit of construction work; however, he was non-responsive to the IJ's 14 question of what he meant by a "bit of construction work." He also testified that 15 he returned to India in 2012 because his father died, but when confronted with the 16 fact that his father died in 2008, he then indicated that he had returned in 2012 for 17 a marriage his mother arranged. We defer to the IJ's determinations on these 18

7

points. See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007) (explaining that 1 where there are multiple permissible interpretations, "a reviewing court must 2 defer to [the IJ's] choice so long as the deductions are not illogical or implausible" 3 (quotation marks omitted)); Majidi, 430 F.3d at 80. 4

Finally, the IJ reasonably concluded that Singh did not rehabilitate his 5 testimony with reliable corroboration. "An applicant's failure to corroborate his 6 or her testimony may bear on credibility, because the absence of corroboration in 7 general makes an applicant unable to rehabilitate testimony that has already been 8 called into question." Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Singh 9 provided affidavits from his wife and doctor in India, but the IJ reasonably gave 10 them little weight as neither declarant was available for cross-examination, Singh's 11 wife's affidavit was almost identical to Singh's, and the medical records were not 12 contemporaneous. See Likai Gao, 968 F.3d at 149 (holding that an "IJ acted within 13

8

a Mann Party affidavit as it was prepared for the litigation, did not discuss the 1 specific harm Singh suffered, and was vague as to Singh's actual participation in 2 the party. See Y.C., 741 F.3d at 332. 3

In sum, substantial evidence supports the adverse credibility determination 4 given these issues with Singh's demeanor and responsiveness, the related 5 inconsistencies and omissions, vague testimony, and the lack of reliable 6 corroboration. See Likai Gao, 968 F.3d at 145 n.8; Xiu Xia Lin, 534 F.3d at 167; Biao 7 Yang, 496 F.3d at 273. The adverse credibility determination is dispositive because 8 asylum, withholding of removal, and CAT relief were all based on the same factual 9 predicate. See Hong Fei Gao, 891 F.3d at 76. 10

For the foregoing reasons, the petition for review is DENIED. All pending 11 motions and applications are DENIED and stays VACATED. 12

FOR THE COURT: 13

Catherine O'Hagan Wolfe, 14 Clerk of Court 15