Singh v. Lynch

• Decision Date: 14 October 2015
• Docket Number: No. 15–1285.,15–1285.
• Parties: Amardeep SINGH, also known as Amardeep Simngh, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

803 F.3d 988

Amardeep SINGH, also known as Amardeep Simngh, Petitioner

v.Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 15–1285.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 10, 2015.

Filed: Oct. 14, 2015.

Rehearing and Rehearing En Banc Denied Jan. 4, 2016.

David J. Chapman, argued, Fargo, ND, for petitioner.

John Blakeley, USDOJ, Oil, argued, Washington, DC, (Enitan Otunla, USDOJ, Oil, Washington, DC, on appellee's brief), for respondent.

Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

Opinion

RILEY, Chief Judge.

Amardeep Singh, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (Board) affirming an immigration judge's (IJ) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Singh also challenges the Board's rejection of his claim of ineffective assistance of counsel. We deny the petition for review.

I. BACKGROUND

In August 2011, Singh entered the United States near Hidalgo, Texas, without a valid visa or other entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I) (documentation requirements). Singh is a Sikh and a member of the Shirmoani Akali Dal Amritsar party led by Sardar Simranjit Singh Mann (Mann Party). When detained by the U.S. Department of Homeland Security (DHS), Singh asserted he feared persecution by the rival India Congress Party (Congress Party) if returned to India. Singh told a DHS asylum officer that members of the Congress Party had twice beaten him for refusing to switch parties. The officer found Singh had “a credible fear of persecution” for his political opinion and referred Singh's application for further consideration. Id. § 1225(b)(1)(A)(ii), (B)(ii).

On September 9, 2011, DHS initiated removal proceedings. Conceding removability, Singh applied for asylum, withholding of removal, and CAT protection. See id. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. § 1208.16(c). On March 21, 2012, the IJ continued Singh's removal hearing to permit Singh to obtain new counsel. Singh's retained counsel did not attend the rescheduled removal hearing on November 13, 2012, despite a promise to do so, instead sending an unprepared associate to appear for Singh. The IJ chastised counsel for not being ready to proceed, but granted another continuance—though shorter than counsel sought.

At the rescheduled hearing on December 5, 2012, Singh testified through an interpreter that he was a farmer in India and a low-level member of the Mann Party. Singh reported he fled India for the United States because he feared persecution for his political views. Singh again described two instances where he had been attacked and beaten by members of the Congress Party who told him to disavow the Mann Party and join the Congress Party. Singh provided several documents to support his request for asylum.

On August 8, 2013, the IJ denied Singh's application and ordered him removed. Thoroughly examining the record, the IJ decided Singh was “not credible because his testimony contradicted information he gave at his [credible fear interview with the asylum officer] and because he was nonresponsive and evasive during cross-examination.” The IJ found “[s]ome testimony was unbelievable” and some was “directly contradicted” by “the corroborating evidence,” but all lacked sufficient record support.

The IJ alternatively found that, even if credible, Singh's accounts of minor beatings and short detentions did “not rise to the level of persecution.” The IJ also found Singh failed to establish a well-founded fear of future persecution. Because Singh was not eligible for asylum and did not present evidence he would face torture for other reasons, the IJ concluded he could not establish an entitlement to withholding of removal or relief under the CAT.

With new counsel, Singh timely appealed to the Board, which denied relief. The Board agreed with the IJ that Singh was not credible and alternatively “that, assuming credibility, [Singh] did not demonstrate that he suffered past persecution or that he has a well-founded fear of future persecution based on the record evidence and country conditions in Punjab, India.” In addition to upholding the IJ's decision on the merits, the Board rejected Singh's assertion he was prejudiced by his prior counsel's ineffective assistance. Singh petitions for review of the Board's order.

II. DISCUSSION

A. Standards of Review

We review the Board's “decision as the final agency action, but to the extent the [Board] adopts the findings of the IJ, this court reviews those findings as part of the final agency action.” R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir.2012). In evaluating Singh's petition, we review de novo his due process claim, see Zheng v. Holder, 698 F.3d 710, 714 (8th Cir.2012), and any issues of law, see Ademo v. Lynch, 795 F.3d 823, 828 (8th Cir.2015). “We review the IJ's findings of fact, including adverse credibility findings, under the deferential substantial evidence standard, and must treat those findings as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Sandoval–Loffredo v. Gonzales, 414 F.3d 892, 895 (8th Cir.2005) (quoting 8 U.S.C. § 1252(b)(4)(B) ).

B. Credibility

“To qualify for asylum, [Singh] must show that he is unable or unwilling to return to his country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Nanic v. Lynch, 793 F.3d 945, 947 (8th Cir.2015) (citing 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A) ). Proof of past persecution gives rise to a rebuttable presumption of “a well founded fear of future persecution.” Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir.2008).

Persecution “is an ‘extreme concept’ that involves the infliction or threat of death, torture, or injury to one's person or freedom, on account of a protected characteristic.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir.2010) (quoting Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir.2007) ). It “does not include low-level intimidation and harassment.” Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir.2004). “In addition, persecution is a harm that is inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”Shaghil v. Holder, 638 F.3d 828, 834 (8th Cir.2011) (quoting Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.2005) ) (internal marks omitted).

An applicant can prove persecution “without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). “An IJ may properly request evidence to corroborate an alien's claims if his credibility is in question.” Prokopenko v. Ashcroft, 372 F.3d 941, 945 (8th Cir.2004). “[E]vidence of persecution that is ‘insufficiently specific or imminent’ does not establish persecution for an asylum claim.” Litvinov v. Holder, 605 F.3d 548, 554 (8th Cir.2010) (quoting Ladyha v. Holder, 588 F.3d 574, 577 (8th Cir.2009) ).

Singh claims he was and will be persecuted in India because he will not change political parties. After hearing Singh's testimony and reviewing the other evidence in the record, the IJ found Singh was not credible because of inconsistencies in his testimony and a lack of evidentiary support. Singh claims the IJ's “adverse credibility finding should be reversed” because, in Singh's view, “it is based almost exclusively on collateral matters that are not relevant to the key facts of [Singh's] claim” and the IJ failed to give adequate notice of the need for corroborating evidence. Singh's claims are without merit.¹

Singh complains the IJ's credibility determination was based on the IJ's “improper consideration of” “evidence that is not relevant or probative or fundamentally fair when related to the actual incidents of persecution.” As Singh sees it, he is entitled to a new hearing because the agency should have focused not on his understanding of “broad political” issues and what he calls “minor inconsistencies or inaccuracies on tangential issues” and “innocuous failures in [Singh's] knowledge” but on his consistent account of “two particular physical attacks, post attack threats, and his flight from” India. Singh misconstrues the IJ's task and the scope of appellate review.

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). And “we defer to an IJ's credibility determination where, as here, it is supported by ‘specific, cogent reasons for disbelief.’ ” Fesehaye v. Holder, 607 F.3d 523, 527 (8th Cir.2010) (quoting Onsongo v. Gonzales, 457 F.3d 849, 852 (8th Cir.2006) ).

Notwithstanding Singh's contention to the contrary, Singh received sufficient notice and a fair opportunity to obtain and present evidence to corroborate his claims. The IJ and Board then duly considered Singh's testimony in relation to the other relevant factors. The IJ and Board merely found...