Amardip Singh v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3667
AMARDIP SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-493-774
Immigration Judge: Honorable Frederic G. Leeds
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: September 25, 2009 )
___________
OPINION
___________
PER CURIAM
Amardip Singh, a native and citizen of India, entered the United States without
inspection at the Canadian border in March 1998. He was placed in removal proceedings
under INA § 212(a)(6)(A)(i) in November 2005. Singh conceded removability and

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applied for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT), claiming that he had been persecuted in India because of his political
beliefs and activities in the Sikh separatist movement as a member of the Shiromani Akali
Dal (Akali Dal) party.
Singh’s hearing testimony differed from his asylum application regarding the
number of attacks, the number of arrests, the date on which he received a letter-threat, and
where he lived in India, among other things. Singh’s asylum application (I-589) said that
he was attacked once in the marketplace on August 8, 1997, and sustained injuries to his
left leg and hand. (A.R. at 300). In addition to testifying to the August 8 attack at the
hearing, however, Singh testified for the first time that members of the Deba Todha Party,
an anti-Sikh party, attacked him and his father on the street on September 1, 1997, before
he and his father were arrested that same day. (A.R. 133-35). Singh testified that, after
both attacks in 1997, he sought medical treatment from a local doctor whose name and
affiliation he no longer remembered. (A.R. 99; 105; 136). He said that his father tried to
locate the doctor but was unsuccessful. (A.R. 100-101; 137).
Singh stated in his I-589 statement that he was arrested twice but he gave no dates
or details. (A.R. 300 & 304). In addition to testifying that he and his father were arrested
on August 18 and September 1, 1997, (see A.R. 98-99; 136), he also testified that they
were arrested and detained for two or three days in 1992, when he was ten years old, (see
A. R. 97; 125-126). Singh explained that he did not include the 1992 arrest in his I-589

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statement because he was a child in 1992 and because he was not beaten. (A.R. at 126-
27).
Although Singh had originally testified that both he and his father were members
of the Akal Dal party, Singh admitted on cross-examination that he was not actually a
member. (A.R. 94-95; 147). He testified that he and his father received a letter-threat on
July 15, 1997, which differed from his I-589 statement in which he said that the letter
came on June 19, 1997. (A.R. 300; 105 & 124). Although he said in his I-589 statement
that his family moved to Bhada for safety reasons after the marketplace attack in August
1997, (see A.R. 304), he testified at the hearing that he and his family had lived in Bhada
for six years, from 1992 through 1998, (see A.R. 122-123). He left Bhada to go to New
Delhi, which he left for the United States in 1998. (A.R. 110-12). His older brother, who
was not a member of the Akali Dal, lived in New Delhi with his family. (A.R. at 112-
113). Singh’s parents remained in Punjab, where his father remained active in the Akali
Dal party. (Id.). According to Singh, his father, with whom Singh is in touch on a
weekly basis, has had no threats or any other problems since 1998. (Id.).
Singh submitted affidavits from his father, the family’s landlord in Bhada, and a
family friend in Bhada, all of which were similar in content. (A.R. 307). Singh’s father
attested, in pertinent part, that “the police want to implicate my son and me in false
criminal cases and wanted to kill us in a false encounter that is why. (sic) I send my son to
a foreign country i.e. USA in order to escape from the cruelties and unnecessary

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Singh admitted at the hearing held August 23, 2006, and at the outset of the1
hearing on February 1, 2007, that his asylum application was time-barred. (A.R. 65; 157).
We lack jurisdiction to review such determinations. See 8 U.S.C. § 1158(a)(3); Tarawally
v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).
The IJ also noted that, at his credible fear interview in November 2005, Singh2
denied having any fear of persecution or torture should he be returned to India. Singh
explained, however, that he was so “shaken” by his detention for the first time in the
United States that he did not understand what the officer was saying. (A.R. 116-118).
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harassment of the police in March 1998.” (Id.). Singh’s father did not mention in his
affidavit the 1997 attacks and arrests or Singh’s arrest as a ten-year old in 1992. Nor did
Singh’s father recount in his affidavit what efforts he made to find the local doctor who
treated Singh for his injuries in 1997.
The IJ denied Singh’s asylum application as time-barred. The IJ also denied1
withholding of removal and CAT relief, finding that Singh lacked credibility due to
discrepancies and omissions in his testimony, his asylum application, and his father’s
affidavit, recounted above. Citing documentary evidence in the record, the IJ also found2
that Singh failed to show a reasonable fear of future persecution or torture. The IJ
emphasized that Singh’s father, a member of the Akali Dal, and the rest of the family had
experienced no threats or problems in the recent past. The BIA affirmed, finding no clear
error in the IJ’s adverse credibility determination. The BIA also ruled that Singh failed to
establish that it was more likely than not that he would be persecuted for his political
work or tortured if he was deported to India. Singh filed a timely petition for review.
We will deny the petition. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to

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review the final order of the BIA denying Singh’s request for withholding of removal and
for CAT relief. When, as here, the BIA substantially relies on the IJ’s adverse credibility
determination, the Court reviews the decisions of both the IJ and the BIA. Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether the BIA applied the appropriate
standard of review is a question of law, and is therefore subject to de novo review. See
Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We review the factual findings of
the IJ, including adverse credibility findings, for substantial evidence. Abdulrahman v.
Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). The IJ’s adverse credibility finding must be
upheld unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” Xie v. Ashcroft, 359 F.3d 239, 433 (3d Cir. 2004). “In making a credibility
determination, the IJ must provide ‘specific, cogent reasons[s]’ why the applicant is not
credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir. 2006) (citation
omitted).
Singh’s primary claim is that the IJ erred in making an adverse credibility
determination because the inconsistencies and omissions in his testimony did not go to the
heart of his claim. The Government counters that Singh is subject to the credibility
standard set forth in § 101(a)(3) of the REAL ID Act, which was enacted before Singh
filed his asylum application. Under § 101(a)(3), the trier of fact may consider any
inconsistency, inaccuracy or falsehood in an asylum applicant’s written or oral statements,
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of

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At one point during cross-examination, Singh said that he might not have3
understood some of the questions put to him in English. (A.R. 144). In response to the
IJ’s direct questioning, Singh confirmed that he had declined the assistance of an
interpreter at the removal hearing because he preferred to testify in English, his “best
language.” (A.R. 145). He confirmed that he understood everything his attorney asked
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the applicant’s claim.” Gabuniya, 463 F.3d at 322 n.7. We have not addressed the
lawfulness of the new provision in a precedential opinion. We need not decide today
whether the IJ’s credibility finding is proper under § 101(a)(3), however, because we
conclude that the credibility determination was proper under the more generous pre-
REAL ID Act standard.
Here, the IJ noted numerous inconsistencies and omissions in Singh’s case for
relief, which, taken together, call his credibility into question. Taken in isolation, some of
the inconsistencies noted by the IJ could be viewed as minor. For instance, the IJ noted
the discrepancy between the date of the letter-threat as recorded in Singh’s I-589
statement and his hearing testimony. The IJ relied, however, on far more significant
inconsistencies and omissions that go to the heart of Singh’s claim. First, Singh omitted
his attack and detention in 1992 from his I-589 statement. Second, although his I-589
statement mentions the attack that occurred on August 8, 1997, he omitted the attack at a
street rally prior to his arrest on September 1, 1997, to which he testified on cross-
examination. Moreover, Singh admitted that he did not relocate to Bhada with his family
to escape further attacks and arrests. When asked to explain the foregoing omissions and
discrepancies in the record, Singh gave weak and unconvincing reasons. Based on this3

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him on direct examination and everything that was asked so far on cross-examination.
(A.R. 146). When asked again if he wanted an interpreter, Singh again declined. (Id.).
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record, no reasonable adjudicator would be compelled to find Singh’s testimony credible.
See Xie, 359 F.3d at 243; see also Tarawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.
2003) (holding that an adverse credibility determination is supported by substantial
evidence even where only some of the stated bases are appropriate). Because the IJ gave
specific, cogent reasons for disbelieving Singh, which the Board adopted, we must uphold
the adverse credibility determination. 8 U.S.C. § 1252(b)(4)(B).
Singh next claims that the IJ and the BIA erred when they considered his failure to
provide corroboration as a factor in evaluating his credibility. Corroboration goes to the
sufficiency of the evidence; thus, it requires analysis independent of an adverse credibility
determination. See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005). A credible
applicant for asylum and other relief may be required to supply corroborating evidence to
meet his burden of proof. Id. at 218. Here, Singh testified that his father could not find
the doctor who treated him in 1997 and he said that his father no longer had the letter-
threat in his possession, implying that it was lost. We doubt that the IJ based his
credibility determination on Singh’s failure to corroborate, through his father, the reasons
why he lacked documentation of his injuries and of the letter-threat. Even assuming that
the IJ treated the lack of corroboration as part of the overall credibility assessment,
however, the error does not affect the result in this case because we have already

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In light of the our conclusion upholding the IJ’s adverse credibility finding, we4
reject as meritless Singh’s contention that the BIA violated due process and its own
corroboration standards when it failed to specify the additional evidence required in order
to convert Singh’s insufficient claim into a meritorious one.
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concluded that substantial evidence exists to support the IJ’s adverse credibility finding
based solely on significant omissions and inconsistencies in Singh’s presentation of his
case. Chen, 434 F.3d at 221 (citing Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.4
2003)).
Relying on Camara v. Ashcroft, 378 F.3d 361, 372 (4 Cir. 2004) (holding that theth
IJ could not rely solely on an adverse credibility finding to support her denial of asylum
and other relief, where the alien presented independent evidence of torture), Singh argues
that the IJ wrongly denied his CAT claim based solely on the adverse credibility finding.
We conclude that substantial evidence supports the IJ’s conclusion. Unlike in Camara,
the 2006 State Department Report and the 2006 British Home Office Report upon which
the IJ relied, indicated that members of Akali Dal were not subject to torture or brutal
repression. Furthermore, the IJ noted Singh’s testimony that his family experienced no
recent attacks on account of their affiliation with a Sikh separatist party. Because we
have determined that substantial evidence supports the adverse credibility finding, and
because Singh has not cited to evidence indicating that he might be tortured for reasons
unrelated to his claim for withholding of removal, we will uphold the BIA’s decision to

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Singh’s contention that the IJ or the BIA erroneously denied CAT relief because5
he failed to show “acquiescence” by Indian authorities to the torture of Sikh separatists is
meritless. Neither the IJ nor the BIA denied Singh’s CAT claim on that ground.
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deny the CAT claim. See Alemu v. Gonzales, 403 F.3d 572, 576 (8 Cir. 2005); Farah v.5 th
INS, 348 F.3d 1153, 1157 (9 Cir. 2003).th
Accordingly, we will deny the petition for review.

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