Jatinder Singh v. Jefferson Sessions, III

Case: 16-60059 Document: 00514317632 Page: 1 Date Filed: 01/23/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60059 United States Court of Appeals

Fifth Circuit

FILED

JATINDER SINGH, January 23, 2018

Lyle W. Cayce

Petitioner Clerk

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Jatinder Singh petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge

(“IJ”) to deny Singh’s application for asylum, withholding of removal, and

protections under the Convention Against Torture (“CAT”). He challenges the

IJ’s adverse credibility determination, contending that his diagnosis with Post

Traumatic Stress Disorder should have been taken into consideration when

determining whether inconsistencies in his statements rendered his testimony

not credible. For the following reasons, we deny the petition for review.

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No. 16-60059

I.

Jatinder Singh, a young man from Punjab, India, entered the United

States illegally in December 2014 at the age of 18. Shortly thereafter, the

Department of Homeland Security (“DHS”) initiated removal proceedings

against Singh, charging that he was removable pursuant to 8 U.S.C. §

1182(a)(7)(A)(i)(I) because he entered the country without valid entry

documentation.

On December 30, 2014, Singh was interviewed by an Asylum Officer

(“AO”) to determine whether he had a credible fear of returning to India. Singh

waived his right to have his attorney present at the interview. He told the AO

that the police in India had arrested him in 2013 due to his father’s political

affiliation, beat him in January 2014, and “beat him up . . . many times.”

According to Singh, the police said that they were “going to kill [him] because

[his] dad joined the Simrat Mann Jit party,” 1 a Sikh separatist party that

advocates for a separate Sikh nation in Punjab called Khalistan. The AO asked

if Singh was also a member of that party, and Singh replied, “No. Not me.” The

AO then noted that Singh had told agents at the border that he was afraid to

return to India because he “would be harmed because of the party [he]

supported,” and asked him to explain the discrepancy. Singh said, “No, I did

not say that. I was not with the party. It was my dad. First they beat my dad

very badly too.” He further explained that the police had taken his father in

January 2011 and “beat[en] him up so much that he died because of the

beating.” When the AO asked if he ever showed support for the Mann party,

Singh said “No, m[a’a]m. Not me. Never.” Based on the interview, the AO

determined that Singh was “not credible” because his “[t]estimony was

1 The Simrat Mann Jit party is also known as the Shiromani Akali Dal Amritsar party.

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internally inconsistent on material issues.”

In March 2015, Singh filed an application for asylum, withholding of

removal, and relief under CAT. In his application, he stated that he was

seeking protection based on his religion, political opinion, and membership in

a particular social group. He explained that, “[l]ike [his] father, [he] believe[d]

in a [S]ikh sovereign nation,” and that the “Indian Police and the Bharatiya

Janata Party . . . tried to suppress [his] father’s political opinion and affiliation

as well as [his own].” He further explained that his father was beaten by the

police in 2011 and died as a result of the beatings, and that Singh himself was

arrested and beaten by the police “to suppress [his] demand for Khalistan.”

Leading up to Singh’s removal proceedings, his attorney notified the IJ

that Singh was “manifesting mental incompetency symptoms.” In May 2015,

Singh filed a motion for a mental competency hearing and, with it, a

psychological report from the Center for Survivors of Torture. The report

stated that due to his father’s death and his own beating, Singh suffered from

“moderate/severe psychological symptoms synonymous with Post Traumatic

Stress Disorder [(“PTSD”)],” including “difficulty sleeping,” “memories of the

beatings he sustained and images of his father’s suffering and death,”

“nightmares,” and “constant headaches.”

At a May 19, 2015 hearing before the IJ, Singh’s attorney raised the

motion for a competency hearing. During a colloquy with the IJ, Singh’s

counsel stated that Singh was able to understand the nature of the proceedings

and assist in his representation, and that he was capable of testifying to the

court and responding rationally to questions. Based on counsel’s

representations, the IJ determined that there was no need for a further

mental-competency hearing.

The hearing proceeded to Singh’s direct examination. When asked

whether he did anything to support the Simrat Mann Jit party, Singh stated

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that he put up posters advocating for an independent Sikh nation. He further

explained that the president of the party made him a member after his father’s

death. He also testified that had been beaten by the Indian police on two

occasions, and that on each the police had accused him of advocating for a Sikh

nation or being a Sikh terrorist.

The hearing was continued until August 3, 2015. In the interim, DHS

filed a motion for consideration of mental health records and a DHS mental

health review. The review diagnosed Singh with PTSD. When the hearing

resumed in August, the IJ brought up the motion and asked Singh’s attorney

if he thought a mental competency hearing was necessary. Singh’s attorney

responded: “I don’t understand when we’ve already done it. . . . We went

through that. He’s able to understand the proceedings . . . .” The IJ

determined, based on the fact that Singh was able to “communicate with [his

attorney] and rationally relate his testimony,” that there was “no need for any

other mental competency evaluation at th[at] point.”

During Singh’s cross-examination, he reiterated that he had been a

member of the Simrat Mann Jit party since his father’s death in 2011. When

asked why he had denied being a member of that party during his credible-fear

interview, he maintained that “[e]ven then I said I’m a member of the party . .

. . Even then I said that; repeatedly I said that I’m a member of the party.”

Following his cross-examination, Singh’s attorney declined to conduct a

redirect examination.

In support of his claim, Singh also submitted his father’s death

certificate, stating that his father died on January 10, 2011; a hospital report,

dated August 4, 2015, stating that Singh had been treated in January 2013 for

“blunt injury on whole body;” a statement from the president of the Simrat

Mann Jit party stating that Singh was a member of the party; and statements

from his mother and uncle generally corroborating his testimony.

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The IJ found that Singh was not credible. In making that adverse

credibility determination, the IJ pointed to two inconsistences in Singh’s

testimony: “whether [he] was ever a member of the Mann Party and whether

[he] ever participated with or showed any support for the Mann Party.” The

IJ found that Singh’s testimony with respect to his party membership and

activity was inconsistent between his credible-fear interview and his testimony

at the hearing, and that he had failed to credibly explain the inconsistency

when given the opportunity to do so. With respect to the documentary evidence

submitted, the IJ found that it did not establish Singh’s credibility because the

death certificate and medical records did not state the causes of death or injury,

the statements from the party president and Singh’s family were inconsistent

with Singh’s statements to the AO, and because his mother and uncle were

interested witnesses not subject to cross examination.

As to Singh’s mental competency, the IJ determined that, despite his

PTSD diagnosis, Singh was competent to participate in the removal

proceedings because he was able to communicate with his attorney and

rationally relate his testimony to the court. Accordingly, because he “presented

testimony in a coherent, linear manner,” the IJ determined that Matter of J-

R-R-A- did not require a finding that Singh’s alleged fear of harm was

subjectively genuine. See Matter of J-R-R-A-, 26 I & N Dec. 609 (BIA 2015)

(holding that when applicant is deemed incompetent or is unable “to provide

testimony in a coherent, linear manner” due to “mental illness or serious

cognitive disability,” the IJ “should, as a safeguard, generally accept that the

applicant believes what he has presented, even though his account may not be

believable to others or otherwise sufficient to support the claim”).

In light of the adverse credibility determination, the IJ concluded that

Singh had not shown that he was persecuted in the past in India or that there

was a reasonable possibility that he would be persecuted if he returned.

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Accordingly, the IJ determined that Singh was not eligible for asylum or

withholding of removal. Similarly, the IJ found that Singh had not established

that he was tortured in the past in India or that it was more likely than not

that he would be tortured if he returned, and that he was therefore not eligible

for CAT protections.

Singh appealed the IJ’s decision to the BIA, which affirmed the IJ and

dismissed the appeal. The BIA found that the IJ’s competency determination

was not clearly erroneous because Singh’s ability to appropriately answer the

questions posed to him and his attorney’s representations regarding Singh’s

ability to communicate rationally were indicia of competency. The BIA also

agreed with the IJ’s determination that, because Singh’s mental-health issues

“did not affect his ability to provide reliable testimony, the safeguards

described in Matter of J-R-R-A- . . . [were] inapplicable.” Finally, the BIA

affirmed the IJ’s adverse credibility determination, agreeing that Singh’s

explanation for his inconsistent testimony was insufficient.

Singh then petitioned this court for review of the BIA’s decision. He does

not challenge the determination that he was competent to proceed with the

hearing. 2 Rather, he contends only that his credibility should have been

assessed in light of the expert medical reports and his PTSD diagnosis, and

that the J-R-R-A- presumption should have been applied. For the following

reasons, we disagree and deny Singh’s petition for review.

II.

We have authority to review only the decision of the BIA, not the IJ,

unless the IJ’s decision influenced the BIA’s decision. Efe v.

Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Here, the BIA found that the IJ’s

2 While Singh’s initial brief appeared to challenge the competency determination, he

conceded at oral argument that the standard for competency was met and that he therefore

does not challenge the finding that he was competent.

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adverse credibility determination was not clearly erroneous, essentially

adopting the IJ’s reasoning. Accordingly, we have authority to review the IJ’s

decision as well as that of the BIA. See Kompany v. Gonzales, 236 F. App’x 33,

37 (5th Cir. 2007); Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).

We review an immigration court’s findings of fact for substantial

evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). “[I]t is the

factfinder’s duty to make determinations based on the credibility of witnesses.”

Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir. 1994). However, “an adverse credibility

determination still ‘must be supported by specific and cogent reasons derived

from the record.’” Wang, 569 F.3d at 537 (quoting Zhang v. Gonzales, 432 F.3d

339, 344 (5th Cir. 2005)). “[A]n IJ may rely on any inconsistency or omission

in making an adverse credibility determination as long as the ‘totality of the

circumstances’ establishes that an asylum applicant is not credible.” Id. at 538

(emphasis omitted) (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008));

see also id. at 539 (adopting Second Circuit’s standard). “We defer therefore to

an IJ’s credibility determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an adverse credibility

ruling.” Id. at 538 (quoting Lin, 534 F.3d at 167). In other words, we will not

reverse a credibility determination unless the evidence compels it. Id. at 536–

40.

In Matter of J-R-R-A-, the BIA “provide[d] guidance regarding credibility

assessments in cases involving aliens who are incompetent or who have serious

mental-health or cognitive issues that may affect their testimony.” 26 I & N

Dec. at 610. It explained that where an applicant is “deemed incompetent by

the Immigration Judge” or deemed competent but diagnosed with a “mental

illness or serious cognitive disability” resulting in “symptoms that affect his

ability to provide testimony in a coherent, linear manner,” then “the factors

that would otherwise point to a lack of honesty in a witness—including

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inconsistencies . . . —may be reflective of a mental illness or disability, rather

than an attempt to deceive the Immigration Judge.” Id. at 611. Accordingly,

it concluded that “where a mental health concern may be affecting the

reliability of the applicant’s testimony, the Immigration Judge should, as a

safeguard, generally accept that the applicant believes what he has presented,

even though his account may not be believable to others or otherwise sufficient

to support the claim.” Id. at 612.

Singh argues that the IJ should have applied that safeguard, but his

reliance on Matter of J-R-R-A- is misplaced. Matter of J-R-R-A- contemplates

applicants who are deemed incompetent or who have “a mental illness or

serious cognitive disability” that “affect[s] [their] ability to provide testimony

in a coherent, linear manner.” Id. at 611. Its safeguard is to be applied not in

every case where an applicant has a mental health concern, but rather where

“a mental health concern may be affecting the reliability of the applicant’s

testimony.” Id. at 612. Here, Singh was found to be competent, and he does

not now challenge that factual determination. Furthermore, there was no

indication that Singh’s PTSD affected his testimony or ability to speak in a

coherent and linear manner. To the contrary, his attorney represented to the

IJ that Singh was capable of testifying, responding to questions, and rationally

explaining his case. Additionally, after observing Singh’s direct examination,

the IJ found that he could “rationally relate his testimony.” Singh does not

challenge that finding. Accordingly, the safeguard provided for in Matter of J-

R-R-A was not implicated.

While it is true that there was no specific finding of competency at the

time of the credible-fear interview—when he made the inconsistent

statements—Singh was given an opportunity to explain the inconsistent

statements during the removal proceedings—when he was deemed

competent—and failed to do so. When asked to explain the inconsistencies on

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cross-examination, Singh simply denied them, maintaining that he had told

the AO that he was a member of the Simrat Mann Jit party. Singh’s attorney

then declined the opportunity to question Singh on redirect.

Absent application of the safeguard set forth in Matter of J-R-R-A-, we

cannot say that no reasonable fact-finder could have made an adverse

credibility determination. Singh’s statements during his credible-fear

interview regarding his party affiliation were contrary to his later statements

before the IJ. Furthermore, in his petition for review, Singh does not challenge

the reliability of the credible-fear interview or the IJ’s reliance on it in making

the adverse credibility determination. In any event, the record of the credible-

fear interview bears sufficient indicia of reliability to be relied upon in making

an adverse credibility determination. See Ramsameachire v. Ashcroft, 357

F.3d 169, 179–80 (2d Cir. 2004). While the record of the interview is a

summary and not a verbatim transcript, it is clear from the record that the AO

asked follow up questions to enable Singh to develop his account, and there is

no indication that Singh was reluctant to reveal relevant information or that

he was unable to understand the questions asked. See id. at 180. In light of

the inconsistencies in Singh’s statements and his failure to explain the

inconsistencies when given the opportunity to do so—beyond merely denying

them—the record does not compel the conclusion that he was credible.

Nor does the documentary evidence Singh submitted compel such a

conclusion. Singh has failed to show that the documentary evidence—

including the statements of his mother and uncle, interested parties not

subject to cross examination, and the death certificate and medical records,

which did not indicate the causes of death or injury—was so compelling that

no reasonable fact-finder could make an adverse credibility ruling. In light of

the weaknesses in that evidence, as identified by the IJ and affirmed by the

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BIA, and Singh’s inconsistent statements, we cannot say that the evidence

compels the conclusion that he was credible.

Singh has failed to show that no reasonable fact-finder could make an

adverse credibility ruling, and we therefore must defer to the determinations

of the IJ and BIA that his testimony was not credible. See Wang, 569 F.3d at

538. Because we do not disturb the adverse credibility determination, we must

deny Singh’s petition for review.

PETITION DENIED.

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