Gurpreet Singh v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GURPREET BHABRA SINGH, 

Petitioner,

v.

 No. 11-1609

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: September 21, 2012

Decided: November 5, 2012

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Petition denied by published opinion. Judge Duncan wrote the

opinion, in which Judge Agee and Judge Diaz joined.

COUNSEL

ARGUED: Garish Sarin, LAW OFFICES OF GARISH

SARIN, Los Angeles, California, for Petitioner. Lindsay Cor-

liss, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Tony West,

Assistant Attorney General, Civil Division, William C.

2 SINGH v. HOLDER

Peachey, Assistant Director, UNITED STATES DEPART-

MENT OF JUSTICE, Washington, D.C., for Respondent.

OPINION

DUNCAN, Circuit Judge:

Petitioner Gurpreet Bhabra Singh ("Singh") seeks judicial

review of an order of the Board of Immigration Appeals (the

"Board") denying his application for withholding of removal

under both the Immigration and Nationality Act (the "INA")

and under Article III of the Convention Against Torture (the

"CAT"). Singh contends that the Board denied him relief in

part based on an improper adverse credibility determination.

Singh also argues that the errors of an incompetent interpreter

during his immigration proceedings violated his right to due

process. For the reasons explained below, we find no error,

and therefore deny Singh’s petition for review.

I.

A.

Singh, born in 1985 in the Punjab state of India, is a native

and citizen of that country, and a member of the Sikh religion.

He departed his native country at some point in October 2005,

traveling to Mexico on a student visa. In February 2006, he

entered the United States from Mexico. After being served

with a Notice to Appear by the Department of Homeland

Security on November 29, 2007, Singh applied for withhold-

ing of removal under the INA, 8 U.S.C. § 1231(b)(3), and

under the CAT, see 8 C.F.R. § 208.16(c).

In his application and during the immigration proceedings,

Singh explained the circumstances which led to his flight

from India. The following facts are drawn from those narra-

SINGH v. HOLDER 3

tives, and, unless otherwise noted, are undisputed by the gov-

ernment.

Singh’s father, Surinder Singh ("Surinder"), is a wealthy

and influential farmer in the Punjab state where he and his

family live. Sunil Dutti ("Dutti"), a member of the then-ruling

Nationalist Congress party and the mayor of the town where

the Singhs lived, sought Surinder’s political support. Surinder,

however, had professed himself a supporter of the then-

opposition Akali Dal Party.

Singh also claimed allegiance to the Akali Dal Party, which

he described as primarily committed to the care of Sikh reli-

gious shrines and providing assistance to rural farmers.

According to Singh, although Sikhs can and do join different

political parties, the Akali Dal Party is widely considered the

leading Sikh political party. Singh testified that his involve-

ment with the Akali Dal Party consisted of accompanying his

father on campaign and fundraising visits.1

On January 26, 2005, Singh was at home when three mem-

bers of the Congress Party, including one known supporter of

Dutti, accompanied by three police officers, arrived in search

of Surinder. Singh answered the door, and the group then

forced its way into the house. Singh informed them that his

father was not at home, but that they could speak with him

instead. According to Singh, members of the group then

sought to persuade him to convince his family—in particular

his father—to support the Congress party in part by offering

various sorts of benefits. When this attempt at persuasion

proved ineffective, the group resorted to more coercive tac-

tics.

1

Singh testified that he accompanied his father on visits where Surinder

sought to convince people to "vote for our family." J.A. 110. The record

does not indicate, however, whether Singh, Surinder, or any other member

of the family was a candidate for political office.

4 SINGH v. HOLDER

After reminding Singh that the Congress Party was in

power, the group threatened him by telling him they could do

whatever they wanted to him. Singh responded that he would

report any misconduct to higher authorities, and an argument

ensued. At some point the group indicated that they had come

to arrest Surinder. According to Singh, when he protested the

police had no cause to arrest his father and demanded to see

the arrest warrant, the police officers arrested him instead.

The police transported Singh to a nearby police station

where they told Singh he would be held until his father came

to pick him up. The police held Singh for two days. During

that time, they slapped and hit him, and at night, they tied his

arms behind his back and further abused him. The police also

beat him with a police club that broke his arm and rendered

him unconscious. Upon waking from this beating, Singh

noted he had been burned with a cigarette.

On January 28, 2005, Surinder came to the police station to

secure the release of his son. Surinder gave 100,000 Indian

rupees to the police, and they released Singh. According to

Singh, Surinder knew one of the police officers personally,

and thus was able to secure Singh’s release but avoid arrest

himself.

In June 2005, the officers who had arrested Singh in Janu-

ary reappeared looking for him. This time, Surinder was at

home while Singh was not. After the police left, Surinder

advised his son to leave their home in the Punjab state. Singh

then borrowed money from a friend and traveled to Delhi,

where he lived with relatives. He stayed in Delhi from June

until October 2005, at which point he obtained a student visa

to travel to Mexico. Singh claimed that he could not remain

in Delhi because the police were looking for him throughout

the country, and he feared they would file a false case against

him, or worse, "take [him] anywhere and . . . kill [him]." J.A.

138.

SINGH v. HOLDER 5

Upon arrival in Mexico at some point in October or

November 2005, Singh was detained by immigration authori-

ties until the first week of February 2006. Once released,

Singh headed to the United States, crossing the border on

February 20, 2006. After being served with a Notice to

Appear in November 2007, Singh applied for withholding of

removal under the INA and CAT in January 2008.

Singh also recounted an incident that occurred to his father

in August 2007—after Singh had already arrived in the

United States. While the police were detaining Singh in Janu-

ary 2005, Surinder had unsuccessfully sought the intervention

of the Akali Dal Party. In reaction to that party’s failure to

assist, Surinder withdrew his support. According to Singh, the

Akali Dal Party retaliated two years later, in August 2007, by

coming to the Singh family house, beating Surinder, and

breaking one of his legs.

Along with his application, Singh submitted two types of

supporting documentation. First, Singh included a number of

articles and reports attesting to human rights abuses in various

parts of India, including by police in the Punjab state. The

report most pertinent to Singh’s claim is a 2007 British Home

Office Operational Guidance Note on India which describes

the relationship then existing between the Congress and Akali

Dal Parties:

The Akali Dal and the Congress Party are both legal

political parties within India who campaign and par-

ticipate in State and National elections. There is no

evidence to suggest that members of one party fear-

ing ill-treatment or persecution by individual mem-

bers of the other party could not seek protection

from the authorities or relocate internally to escape

a local threat.

J.A. 173-74. Second, Singh submitted affidavits from his fam-

ily members and close family friends, as well as hospital

reports documenting the scope of his injuries.

6 SINGH v. HOLDER

One final fact warrants mention. At some point after Janu-

ary 2005 and before Singh’s immigration hearing, the Akali

Dal Party came to power in the state of Punjab. It appears the

Akali Dal Party remains in power in the Punjab state as part

of a ruling coalition.2

B.

After submitting his application for withholding of removal

and protection under the CAT,3 Singh appeared for a hearing

before an Immigration Judge (the "IJ") on March 13, 2008.

Because Singh’s counsel had previously agreed to conduct the

hearing in English, no interpreter was present. Shortly into

that hearing, however, the IJ determined Singh’s English was

inadequate to comprehend fully what was transpiring. The IJ

therefore continued the hearing to a later date, explaining to

Singh that "it is very important that the Court hears your

application and it’s very important that I understand your

story." J.A. 80.

When the hearing recommenced on November 14, 2008, a

Punjabi interpreter was in the courtroom. The IJ explained to

Singh the procedures for communicating through and with an

interpreter, including the need to inform the interpreter if

Singh did not understand. Singh confirmed that he understood

the procedures, and agreed to follow them.

2

See, e.g., Akali Dal-BJP Sweep Punjab Civic Polls, The Times of India

(Jun. 10, 2012, 9:55 PM), http://articles.timesofindia.indiatimes.com/

2012-06-10/india/32155676_1_akali-dal-bjp-akali-dal-bjp-akali-bjp-

alliance (last visited Oct. 10, 2012).

3

Singh did not seek asylum because he had been in the United States for

more than a year at the time of his application. See 8 U.S.C.

§ 1158(a)(2)(B) (alien cannot seek asylum "unless the alien demonstrates

by clear and convincing evidence that the application has been filed within

1 year after the date of the alien’s arrival in the United States"). Singh con-

cedes that an asylum application is time-barred.

SINGH v. HOLDER 7

At one point early in the November hearing, Singh’s coun-

sel was questioning Singh about founding figures in the Sikh

religion. The IJ asked Singh’s counsel to have the names

spelled for the record, and counsel suggested, given his inabil-

ity to speak Punjabi, that the interpreter was in a better posi-

tion to spell the names properly. The interpreter responded

that her lack of familiarity with the Sikh religion rendered her

unable to spell the names correctly: "I can understand Punjabi

and speak Punjabi, but the way that the names are you can

spell them differently." J.A. 108. The IJ then directed Singh’s

counsel to move on. Singh proceeded to testify concerning the

merits of his claims.

On May 6, 2009, the IJ entered a written memorandum and

order denying Singh’s application for withholding of removal

under both the INA and the CAT, and ordering Singh

removed from the United States to India. Applying the REAL

ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (the

"REAL ID Act"), the IJ found Singh’s testimony lacked credi-

bility because it failed to offer a plausible explanation for why

his father was able to secure his release from prison without

being himself arrested and failed to provide a coherent expla-

nation of Singh’s own political views. The IJ also concluded

that Singh had not provided adequate corroboration for his

claims. Specifically, the IJ took issue with (1) Singh’s expla-

nation that his sister, who lives in the United States, could not

testify or submit a statement on his behalf; (2) Singh’s inabil-

ity to demonstrate that a legal or administrative action against

Punjabi police would necessarily have been ineffective, given

articles he submitted suggesting otherwise; and (3) Singh’s

insufficient explanation of an altered affidavit submitted by

one of Singh’s family friends. On this last point, the IJ did not

credit the affidavit because Singh had not explained why a

date had been altered from 2005 to 2007.

Having made an adverse credibility determination, the IJ

then concluded Singh failed to establish a clear probability of

persecution on return to India on the basis of his political

8 SINGH v. HOLDER

opinion and thus was not entitled to withholding of removal

under the INA. The IJ next concluded that because Singh had

failed to demonstrate it was more likely than not he would be

tortured upon return to India, Singh was also ineligible for

withholding of removal under the CAT.

The Board affirmed the IJ’s decision. In addition to uphold-

ing the IJ’s denial of relief under the INA and the CAT, the

Board rejected Singh’s contention that the incompetence of

the interpreter during his hearing before the IJ amounted to a

violation of his right to due process. The Board based this lat-

ter conclusion on Singh’s failure to raise any concern with the

interpreter during the hearing and on the fact that "untrans-

lated" portions of testimony had been left untranslated for

legitimate reasons. Accordingly, the Board dismissed Singh’s

petition. This appeal followed.

II.

Singh now presses three arguments on appeal. Singh first

contends that the IJ’s adverse credibility determination was

unfounded, and that he does qualify for withholding of

removal under the INA. Second, Singh asserts he is also enti-

tled to withholding of removal under the CAT because his

history of having been tortured by the police, when viewed in

light of the human rights practices in the state of Punjab, dem-

onstrates it is more likely than not he would be tortured if

forced to return to India. Finally, Singh again argues that an

incompetent interpreter providing inadequate translation vio-

lated his right to due process. We address each issue in turn.

A.

To qualify for withholding of removal under the INA, an

applicant must establish that if sent back to the country of

removal, his "life or freedom would be threatened in that

country because of [his] race, religion, nationality, member-

ship in a particular social group, or political opinion." 8

SINGH v. HOLDER 9

U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(1). An appli-

cant for withholding must therefore show a "clear probability

of persecution," and link that probability of persecution to one

of the five grounds enumerated in the statute. INS v. Stevic,

467 U.S. 407, 413 (1984). The applicant bears the burden of

establishing the credibility of the facts supporting his applica-

tion, and, if so requested by the trier of fact, providing evi-

dence that corroborates those facts. 8 U.S.C. § 1231(b)(3)(C)

(referring to 8 U.S.C. § 1158(b)(1)(B)(ii) and (iii)). Thus, in

reaching a decision on whether an applicant is entitled to

withholding of removal under the INA, a trier of fact must

determine the credibility of testimony and supporting docu-

mentation.

Singh first challenges the IJ’s finding, upheld by the Board,

that he does not warrant withholding of removal under the

INA on the basis of his political opinion.4 When, as here, the

Board and an IJ issue decisions in a case, we review both on

appeal. Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir.

2009) (citation omitted). Those decisions should be upheld

unless they are "manifestly contrary to the law and an abuse

of discretion." 8 U.S.C. § 1252(b)(4)(D); Zelaya v. Holder,

668 F.3d 159, 165 (4th Cir. 2012). The agency’s findings of

fact are considered "conclusive unless the evidence was such

that any reasonable adjudicator would have been compelled to

a contrary view." Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.

2011) (citation omitted); 8 U.S.C. § 1252(b)(4)(B). "Agency

findings with respect to an applicant’s credibility are likewise

entitled to judicial deference if such findings are supported by

substantial evidence." Dankam v. Gonzales, 495 F.3d 113,

119 (4th Cir. 2007).

4

Although Singh’s brief refers to his religion and his membership in a

particular social group that includes his family, Appellant’s Br. at 32-33,

Singh’s only arguments for withholding of removal under the INA empha-

size his political opinion or the political opinion allegedly imputed to him,

see id. at 33-35.

10 SINGH v. HOLDER

In particular, Singh claims that the IJ and the Board misap-

plied the credibility provision in the REAL ID Act, and that

such misapplication led to an erroneous decision to deny him

relief under the INA. In response, the government argues that

the record supports both the adverse credibility determination

and the ultimate decision to deny Singh withholding of

removal. Before addressing whether the record compels us to

conclude that Singh is entitled to withholding of removal

under the INA, we consider the effect of the REAL ID Act on

credibility and corroboration requirements in the immigration

context.

1.

Passed on May 11, 2005 and applicable to all asylum or

withholding of removal applications filed under the INA after

that date, the REAL ID Act amended the INA’s provisions on

credibility and corroboration. As to credibility determinations,

the REAL ID Act provides:

Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or respon-

siveness 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 cir-

cumstances 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. There is no presumption of

credibility, however, if no adverse credibility deter-

SINGH v. HOLDER 11

mination is explicitly made, the applicant or witness

shall have a rebuttable presumption of credibility on

appeal.

REAL ID Act § 101(a)(3), codified at 8 U.S.C.

§ 1158(b)(1)(B)(iii) (emphasis added). Before the enactment

of this provision, an inconsistency or other inaccuracy justi-

fied an adverse credibility finding only when that inconsis-

tency went to the heart of an applicant’s claim. See Djadjou

v. Holder, 662 F.3d 265, 274 (4th Cir. 2011) ("Minor omis-

sions, inconsistencies, and contradictions that do not go to the

heart of the applicant’s claims . . . do not necessarily support

an adverse credibility determination."). As a number of our

sister circuits have now recognized, the REAL ID Act’s credi-

bility provision effectively overrules the previous "heart of

the claim" standard. See Shrestha v. Holder, 590 F.3d 1034,

1043 (9th Cir. 2010) ("Inconsistencies no longer need to ‘go

to the heart’ of the petitioner’s claim to form the basis of an

adverse credibility determination."); El-Moussa v. Holder,

569 F.3d 250, 256 (6th Cir. 2009); Wang v. Holder, 569 F.3d

531, 537-38 (5th Cir. 2009) ("Congress’s express rejection of

the prior ‘heart of the applicant’s claim’ standard demon-

strates an intent to provide more discretion to the IJ in deter-

mining credibility of witnesses. . . ."); Lin v. Mukasey, 534

F.3d 162, 167 (2d Cir. 2008); Lin v. Mukasey, 521 F.3d 22,

26 (1st Cir. 2008); Chen v. U.S. Attorney Gen., 463 F.3d

1228, 1233 (11th Cir. 2006); Mitondo v. Mukasey, 523 F.3d

784, 787-88 (7th Cir. 2006) ("This statute abrogates decisions

that focus on ‘whether an inconsistency, inaccuracy, or false-

hood goes to the heart of the applicant’s claim.’"). We now

join those courts in recognizing the REAL ID Act’s abroga-

tion of our former standard for credibility assessments under

the INA.5

5

A number of our unpublished per curiam decisions have applied the

REAL ID Act’s credibility provision. See, e.g., Abebe v. Holder, 468 F.

App’x 227, 228 (4th Cir. 2012); Zong Ming Zhu v. Holder, 462 F. App’x

319, 321 (4th Cir. 2012); Yi Dong Lin v. Holder, 444 F. App’x 652, 653

12 SINGH v. HOLDER

It is important to delineate what the REAL ID Act credibil-

ity provision changes and what it leaves in place. As the pro-

vision’s language makes evident, an IJ’s adverse credibility

determination need no longer rest solely on those matters fun-

damental to an alien’s claim for relief under the INA. Instead,

the REAL ID Act’s credibility provision "is intended to allow

Immigration Judges to follow a ‘commonsense’ approach

while ‘taking into consideration the individual circumstances

of the specific witness and/or applicant.’" In re J-Y-C, 24 I.

& N. Dec. 260, 262 (BIA 2007) (quoting H.R. Rep. 109-72,

at 167) (internal alterations omitted). This more flexible

approach to credibility assessments, however, does not alter

the underlying methodological requirement that an Immigra-

tion Judge provide "specific, cogent reason[s]" for making an

adverse credibility determination in a given case. See Camara

v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) (quoting

Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989)); see also

Shrestha, 590 F.3d at 1042 (noting the IJ’s requirement to

provide specific, cogent reasons for an adverse credibility

determination "is not altered by the REAL ID Act").

In addition to altering the INA’s credibility provision, the

REAL ID Act also amended the INA’s requirement for cor-

roborating evidence. Under the amendment, when a trier of

fact is not fully satisfied with the credibility of an applicant’s

testimony standing alone, the trier of fact may require the

applicant to provide corroborating evidence "unless the appli-

cant does not have the evidence and cannot reasonably obtain

the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii);6 see also J-Y-C,

(4th Cir. 2011); Ngwa v. Holder, 441 F. App’x 203, 204-05 (4th Cir.

2011); Jie Jie Lin v. Holder, 436 F. App’x 182, 184 (4th Cir. 2011); Ling

Yu v. Holder, 433 F. App’x 174, 175 (4th Cir. 2011); Lewete v. Holder,

429 F. App’x 320, 321 (4th Cir. 2011); Acharya v. Holder, 424 F. App’x

196, 197 (4th Cir. 2011).

6

Although the statute refers specifically to an asylum applicant, see 8

U.S.C. § 1158(b)(1)(B)(ii) (referring to whether applicant has demon-

strated "specific facts sufficient to demonstrate that the applicant is a refu-

gee") (emphasis added), a cross-reference at 8 U.S.C. § 1231(b)(3)(C)

applies the REAL ID Act’s credibility and corroboration provisions to an

alien seeking withholding of removal under the INA.

SINGH v. HOLDER 13

24 I. & N. Dec. at 263 ("The amendments to the [REAL ID]

Act continue to allow an alien to establish eligibility for asy-

lum through credible testimony alone, but they also make

clear that where a trier of fact requires corroboration, the

applicant bears the burden to provide corroborative evidence,

or a compelling explanation for its absence." (citation omit-

ted)).7 A failure to either provide corroborative evidence fol-

lowing a request by a trier of fact or explain its absence

further buttresses an adverse credibility determination.

2.

Having reviewed the changes wrought by the REAL ID Act

to the INA’s credibility and corroboration provisions, we now

assess the adverse credibility determination in this case in

light of those amendments. After considering the totality of

the circumstances and all relevant factors implicated in

Singh’s claim, the IJ identified three grounds for finding

Singh’s testimony incredible. First, Singh’s testimony about

his father coming to the police station to secure Singh’s

release lacked "inherent plausibility." 8 U.S.C.

§ 1158(b)(1)(B)(iii). In particular, the IJ found it implausible

that an individual wanted for arrest and whose son was

arrested in his stead would be able to appear at the police sta-

tion—and then negotiate with the police regarding his son’s

detention before paying for his son’s release—without being

himself arrested. Although Singh offers a "mixed-motive"

theory on appeal—that the police were simultaneously seek-

ing to persecute Singh and his father for their support of the

7

The REAL ID Act’s amendment of the INA’s corroboration require-

ment sought to "codify the [Board]’s corroboration standards." J-Y-C-, 24

I. & N. Dec. at 263 (citation and internal alteration omitted). Unlike the

amendment to the credibility provision, however, this amendment effects

no change to our existing precedent. See Marynenka v. Holder, 592 F.3d

594, 601 (4th Cir. 2010) ("[E]ven for credible testimony, corroboration

may be required when it is reasonable to expect such proof and there is

no reasonable explanation for its absence.") (quoting Lin-Jian v. Gonzales,

489 F.3d 182, 191-92 (4th Cir. 2007)).

14 SINGH v. HOLDER

Akali Dal Party and to extort money from them—he did not

articulate this explanation before the IJ or the Board. The IJ

was therefore entitled to find that Singh’s testimony lacked

credibility on the record before him.

Second, the IJ reasonably found Singh to be nonresponsive

at various points in his testimony. On one occasion, for exam-

ple, counsel for the government sought at least twice to ques-

tion Singh regarding the political opinion he held and for

which he feared persecution in the future. In response, Singh

first suggested he held views distinct from those advocated by

any political parties. When pressed further, Singh began dis-

cussing his father’s views and efforts by political parties to

take his father’s land. As the IJ noted, neither answer was respon-

sive.8

Finally, Singh’s inability to state with any detail his politi-

cal opinion provides a third ground for finding his testimony

wanting in credibility. Singh made clear not only that his

views differed from those espoused by the existing political

parties in the state of Punjab, but also that he now does not

support any party. While support of a party is no sine qua non

for holding a political opinion, Singh failed to articulate any

political views whatsoever. At best, he identified his views

with those of his father, Surinder. But Singh provided no

8

To the extent Singh might ascribe his nonresponsiveness in the face of

questions about his political views to problems with the interpreter—an

argument not specifically advanced in his brief or at oral argument—we

note that the transcript for the relevant part of the immigration hearing

contains no untranslated portions or "indiscernible" notations. See J.A.

142-43. Certainly an applicant’s nonresponsiveness cannot support an

adverse credibility determination when caused by an incompetent inter-

preter. See Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000); Ama-

dou v. INS, 226 F.3d 724, 728 (6th Cir. 2000). Such is not the case here,

where after making "a sincere effort to understand [Singh’s] testimony,

and . . . provid[ing] him with numerous opportunities to elaborate and to

clarify it," Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002), the IJ carefully

based his adverse credibility determination on those moments of non-

responsiveness attributable solely to Singh.

SINGH v. HOLDER 15

explanation of Surinder’s current political opinion, if any.

Thus, taken together, these findings—the inherent implausi-

bility of Singh’s account of his father’s having secured

Singh’s release from prison, Singh’s nonresponsiveness while

testifying, and Singh’s failure to identify a political view

likely to subject him to persecution—constitute specific and

cogent reasons warranting an adverse credibility determina-

tion under the REAL ID Act’s amendments to the INA’s cred-

ibility provision.9

Further bolstering the IJ’s adverse credibility determination

was Singh’s failure to provide adequate corroborating evi-

dence when so requested. The IJ’s request for corroborating

evidence was reasonable in light of his credibility concerns

with Singh’s testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii)

("The testimony of the applicant may be sufficient to sustain

the applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the applicant’s testi-

mony is credible. . . ."). In response, however, Singh failed to

adduce evidence to corroborate his testimony. Instead, Singh

produced testimonials from family members and close family

friends, which properly troubled the IJ. Noting our concern

that affidavits submitted by family members and close friends

lack the hallmarks of independent evidence, see Gandziami-

Mickhou v. Gonzales, 445 F.3d 351, 358-59 (4th Cir. 2006)

(holding that a "notice of escape" from a prison, a member-

ship card for a political organization, an affidavit from a polit-

ical party leader, and State Department reports describing

persecution of members of a political group, unlike "affidavits

from friends and family," constitute independent corroborat-

ing evidence of political persecution), the IJ viewed Singh’s

testimonials with considerable skepticism.10 Such skepticism

9

Given that Singh’s lack of credibility extends to his putative political

opinion, the evidence here arguably satisfies our pre-REAL ID Act "heart

of the claim" standard as well.

10

Singh did submit one affidavit from an individual identifying himself

as an active member of the Akali Dal Party. See J.A. 211-13. While

16 SINGH v. HOLDER

is justifiably heightened where, as here, one of the affidavits

had been altered by hand with no explanation provided.

Singh exacerbated his credibility problems by failing to

explain why he did not or could not reasonably obtain addi-

tional evidence to corroborate his testimony. The IJ noted the

lack of evidence from Singh’s relatives in Delhi, with whom

he claimed to have resided from June 2005 until he traveled

to Mexico in October 2005, and was particularly troubled by

Singh’s explanation for the absence of any corroborating evi-

dence from his sister who lives in the United States.11 Singh

reported, without elaboration, that "his sister could not testify

or provide a statement because she is no longer a part of the

family and because he does not want to involve her in his

problems." J.A. 340. Although we have faulted an Immigra-

tion Judge for expecting the corroborative testimony of an

applicant’s friend when that friend had suffered a brain con-

cussion and had been advised to refrain from any activity

largely corroborating Singh’s account, the affidavit also raises new credi-

bility questions. The affiant claims he assisted Surinder in bribing the

police to secure Singh’s release, and that Surinder subsequently stopped

supporting the Akali Dal Party to avoid any further confrontations with the

police. This account differs from Singh’s claim that his father’s support of

the Akali Dal Party ceased because the party failed to assist their family

while Singh was detained.

11

Although not required to credit fully affidavits from family members,

see Gandziami-Mickhou, 445 F.3d at 358-59, in this case, the IJ nonethe-

less rightly expected Singh either to produce such evidence or explain why

he could not reasonably obtain it, see 8 U.S.C. § 1158(b)(1)(B)(ii). Our

holding in Gandziami-Mickhou neither requires an IJ to discredit any and

all affidavits from close friends and family, see, e.g., Tassi, 660 F.3d at

722-23 (faulting IJ for not crediting affidavit of applicant’s mother-in-

law), nor does it permit an IJ to solicit such evidence only then to fault an

applicant because the solicited evidence is not adequately independent.

Here, the IJ provided specific, cogent reasons for seeking corroborating

evidence from Singh’s relatives in Delhi and his sister, and did not rely

solely on the absence of this corroborating evidence to support his adverse

credibility determination.

SINGH v. HOLDER 17

which might upset her,12 see Marynenka v. Holder, 592 F.3d

594, 598-99 (4th Cir. 2010), the IJ’s expectation of some form

of corroboration from Singh’s sister—or some explanation

why such evidence could not reasonably be obtained—falls

well within his discretion as the trier of fact under the REAL

ID Act’s corroboration provision. See § 1158(b)(1)(B)(ii).

In sum, the IJ provided specific and cogent reasons explain-

ing his adverse credibility determination, and found further

support for that determination in Singh’s inability to sustain

his burden to provide corroborating evidence of his statement

and testimony. We conclude that substantial evidence in the

record supports these reasons under the REAL ID Act’s "to-

tality of the circumstances" standard, and therefore uphold the

IJ’s and the Board’s adverse credibility determination.13

12

Because the friend would have had to testify about a gang rape she

and the applicant suffered at the hands of the Belarusian police, there is

little doubt such testimony would have upset her. See Marynenka, 592

F.3d at 598.

13

Given the extent of Singh’s credibility and corroboration problems

here, we have no need to reach an issue that has understandably troubled

our sister circuits, namely, how small an inconsistency is sufficient to jus-

tify an adverse credibility finding. Compare Castaneda-Castillo v. Gon-

zales, 488 F.3d 17, 23 n.6 (1st Cir. 2007) (en banc) (interpreting the REAL

ID Act to revive the falsus in uno, falsus in omnibus approach to credibil-

ity determinations) with Kadia v. Gonzales, 501 F.3d 817, 822-23 (7th Cir.

2007) (Posner, J.) (dubious of this view because an IJ "cannot discredit

otherwise persuasive testimony because of a misspelling in the asylum

application"); see also Scott Rempell, Credibility Assessments and the

REAL ID Act’s Amendments to Immigration Law, 44 Tex. Int’l L.J. 185,

231 (2008) ("[O]n a sliding scale of inconsistencies between simple mis-

spellings and inconsistencies reasonably indicative of untruthfulness are

those that will require further resolution on the basis of their relation to the

inference of untruthfulness as interpreted in accordance with the deferen-

tial standard of review and applicable burden of proof."). Interesting as

this question is, however, Singh’s credibility problems are not of so small

a quantum as to warrant discussion of it in this case. Cf. Lin, 521 F.3d at

27 n.3 (flagging issue but not addressing it because "we cannot say it

would be irrational to consider the inconsistencies in this case relevant to

[the applicant]’s truthfulness").

18 SINGH v. HOLDER

3.

Having found substantial evidence supporting the Board’s

adverse credibility determination, we now consider whether,

in light of that determination, Singh is nonetheless entitled to

withholding of removal under the INA. To prevail on his

withholding of removal claim, Singh must establish "a clear

probability of persecution" on the basis of race, religion,

nationality, political opinion, or membership in a particular

social group. Stevic, 467 U.S. at 413. This standard imposes

a more stringent burden than for asylum.14 Id. at 429-30. Per-

secution takes the form of "threats to life, confinement, tor-

ture, and economic restrictions so severe that they constitute

a threat to life or freedom." Fatin v. INS, 12 F.3d 1233, 1240

(3d Cir. 1993) (citing Matter of Acosta, 19 I. & N. Dec. 211,

222 (BIA 1985)) (overruled in part by Matter of Mogharrabi,

19 I. & N. Dec. 439 (BIA 1987)); see also Li v. Gonzales, 405

F.3d 171, 177 (4th Cir. 2005) (explaining that persecution,

which must "rise above the level of mere harassment," is "an

extreme concept that does not include every sort of treatment

that our society regards as offensive" (citations omitted)).

Where an applicant establishes past persecution, he is entitled

to a rebuttable presumption that his "life or freedom would be

threatened in the future in the country of removal on the basis

of the original claim." 8 C.F.R. § 1208.16(b)(1)(i).

At the outset, we observe that the adverse credibility deter-

mination deals a fatal blow to Singh’s withholding of removal

claim under the INA. Simply put, because Singh has failed to

demonstrate that he holds a political opinion, let alone one

that would serve as the basis for any future persecution if

returned to India, he cannot establish a nexus to a statutorily

protected ground. Moreover, his lack of credibility renders

14

To qualify for asylum as a refugee, an applicant must demonstrate

"persecution or a well-founded fear of persecution on account of race, reli-

gion, nationality, membership in a particular social group, or political

opinion." 8 U.S.C. § 1101(42)(A).

SINGH v. HOLDER 19

unavailable a theory of relief under the INA based on past

persecution. See Djadjou, 662 F.3d at 273-74 ("The existence

of only a few . . . inconsistencies, omissions, or contradictions

can be sufficient for the agency to make an adverse credibility

determination as to the applicant’s entire testimony regarding

past persecution.")

Even had Singh been found credible, however, his claim

for relief under the INA still falls short for two reasons. First,

Singh’s core claim of persecution stems from mistreatment at

the hands of the Congress Party and those police officers sup-

porting it. Before he fled from the state of Punjab to Delhi in

June 2005, Singh identified himself as a supporter of the

Akali Dal Party. Now, however, the Akali Dal Party is in

power. Although Singh no longer supports the Akali Dal

Party, there is no indication either that the Congress Party and

its supporters are in a position to harass Singh further through

collaboration with the police or that the Akali Dal Party

would target Singh for persecution.

On appeal, Singh contends that his father’s lack of support

for the Akali Dal Party, which Singh contends led to an attack

by the party on his father in August 2007, should be imputed

to him. Appellant’s Br. at 34-36. This contention suffers from

a number of flaws. Nothing in the record indicates that mem-

bers of the Akali Dal Party have imputed or would impute

Surinder’s lack of support for the party to Singh. Moreover,

Singh has pointed to no other family member—which

includes a younger brother living at home—to whom Sur-

inder’s political views have been imputed. Finally, even

assuming attribution of Surinder’s political opposition to the

Akali Dal Party to Singh, Singh does not explain how the sin-

gle violent act against his father in August 2007 presages per-

secution against Singh (or his father) in 2012 and beyond.

Indeed, the record discloses no acts of violence or reprisals

against Surinder since August 2007, and if he is able to reside

in his home without suffering persecution at present, it is dif-

ficult to understand why Singh could not do so as well.

20 SINGH v. HOLDER

The second shortcoming in Singh’s petition for relief under

the INA is his failure to demonstrate that he could not relocate

safely to some part of India outside the state of Punjab. An

applicant for withholding must demonstrate either that his

well-founded fear of persecution extends country-wide or that

it would be unreasonable to expect him to seek refuge in

another part of the country. See Matter of R-, 20 I. & N. Dec.

621, 626-27 (BIA 1992). Here, Singh moved to Delhi in June

2005, and apparently lived there without incident until Octo-

ber 2005, when he left for Mexico. Although Singh claimed

police were looking for him all over India, no evidence in the

record supported this claim, and the IJ did not credit it. More-

over, nothing in the record suggests it would be unreasonable

for Singh to continue living in Delhi.15 Thus, because substan-

tial evidence supports Singh’s failure to establish a clear prob-

ability of persecution throughout India, the Board’s

conclusion that he was not entitled to withholding of removal

under the INA is not "manifestly contrary to the law and an

abuse of discretion." 8 U.S.C. § 1252(b)(4)(D).

B.

We turn next to Singh’s claim that he is entitled to with-

holding of removal under the CAT. To prevail on his CAT

claim, Singh must demonstrate "it is more likely than not that

he . . . would be tortured if removed" to India. 8 C.F.R.

§ 1208.16(c)(2). No nexus to a statutory ground—race, reli-

gion, nationality, political opinion, or membership in a partic-

ular social group—is required, and an adverse credibility

finding with respect to a withholding claim under the INA is

not itself sufficient to defeat a withholding claim under the

CAT. Camara, 378 F.3d at 371. To constitute torture within

the meaning of the CAT, the harm must be "inflicted by or at

15

The 2007 British Home Office Operational Guidance Note on India

Singh submitted with his application indicated that those fearing persecu-

tion on political grounds in the state of Punjab could "relocate internally

to escape a local threat." J.A. 173-74.

SINGH v. HOLDER 21

the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity."

8 C.F.R. § 1208.18(a)(1). Factors properly considered when

determining whether an individual is more likely than not to

face torture if returned to the country of removal are evidence

of past torture, whether the individual could relocate to

another part of the country where she is not likely to be tor-

tured, evidence of human rights violations in the country of

removal, and any other relevant country-specific information.

8 C.F.R. § 1208.16(c)(3).

Focusing on his CAT claim at oral argument, Singh con-

tends that the IJ and Board erred by (1) ignoring the torture

he suffered at the hands of the police; (2) failing to account

for the objective evidence of widespread human rights abuses

as described in the documentation he submitted; and (3) "al-

low[ing] the taint of the earlier adverse credibility determina-

tion to bleed through into their consideration" of Singh’s CAT

claim. Appellant Br. at 39. The government disagrees, con-

tending the IJ and the Board undertook the proper analysis

and had ample support in the record for denying Singh’s peti-

tion for CAT relief. Because substantial evidence supports the

conclusion that Singh is not more likely than not to face tor-

ture if removed to India, we conclude the IJ and the Board did

not err in finding Singh ineligible for withholding of removal

under CAT.

The IJ and the Board gave fair consideration to Singh’s first

two arguments, and based their rejection of those arguments

on substantial evidence. Considering Singh’s past mistreat-

ment alongside objective documentation describing human

rights practices throughout India, the IJ acknowledged that

"significant abuses do occur," but ultimately concluded that

"the mere existence of a pattern of human rights violations in

a particular country does not constitute a sufficient ground for

finding that a particular person would more likely than not be

tortured." J.A. 344. Singh never explains why this conclusion

is flawed, and our review of the documentary evidence Singh

22 SINGH v. HOLDER

submitted reaches the same result.16 Moreover, the IJ’s find-

ing—never disputed by Singh—that Singh could have relo-

cated safely to another part of India to avoid torture further

reinforces the conclusion below. See 8 C.F.R.

§ 1208.16(c)(3)(ii) (permitting consideration of "[e]vidence

that the applicant could relocate to a part of the country of

removal where he or she is not likely to be tortured").

Singh’s third argument—that the adverse credibility deter-

mination with respect to his INA claim improperly infected

the IJ’s and Board’s CAT analysis—ignores the careful dis-

tinction made below. Although the Board observed that Singh

"seeks to predicate his claim for both [relief under the INA

and the CAT] on the same set of historical facts," it nonethe-

less recognized that an adverse credibility determination

under the INA cannot itself defeat a CAT claim. J.A. 402; see

also Camara, 378 F.3d at 371. The Board then based its con-

clusion that Singh was not likely to be tortured on a rationale

akin to the IJ’s theory that Singh could not establish an indi-

vidualized risk of torture. The fact that Singh cannot articulate

a basis for his past mistreatment is not fatal to his CAT claim,

but it does present a challenge to a showing that he is more

likely than not to be tortured in the future.17

C.

We turn finally to Singh’s claim that an incompetent inter-

preter violated his Constitutional right to due process. We

review due process claims alleging procedural failings in the

16

The country reports in the record identify widespread corruption

throughout India, including in the state of Punjab, but do not present evi-

dence tending to show Singh would more likely than not be tortured.

17

We note the Board ultimately found that Singh had failed to show a

"clear probability" of torture. J.A. 402. To the extent this standard is

higher than the "more likely than not" standard used in the regulations, the

Board erred. Singh does not, however, make this argument. Nonetheless,

we conclude that the error is harmless, as Singh cannot satisfy the "more

likely than not" standard.

SINGH v. HOLDER 23

immigration context de novo. Rusu 296 F.3d at 320. To pre-

vail on this claim, Singh must establish a violation and show

prejudice. Id. at 320-21. To establish a violation, he must

show he was not "accorded an opportunity to be heard at a

meaningful time and in a meaningful manner," meaning he

did not "receive a full and fair hearing on [his] claims." Id. at

321-22. "And we may only find prejudice ‘when the rights of

an alien have been transgressed in such a way as is likely to

impact the results of the proceedings.’" Id. at 320-21 (citing

Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000) (internal

alterations omitted)). We conclude that Singh’s claim fails

because he cannot establish either a violation or prejudice.

The core argument in Singh’s opening brief in support of

his due process claim—that the interpreter stated in open

court that she could not speak Punjabi—is either an attempt

to deceive the court or an egregious error.18 The transcript

makes clear that Singh’s counsel—and not the interpret-

er—stated he could not speak Punjabi. By contrast, the inter-

preter stated she could both understand and speak Punjabi.

More broadly, we observe that the IJ took specific steps to

make sure an interpreter was provided, and that Singh under-

stood the interpreter. See J.A. 75-76 (IJ identifying language

problem during initial removal hearing); id. at 80 (IJ telling

Singh that although Singh understood and could speak some

18

Although Singh did not admit the error at oral argument, he did not

press this point. He did, however, both in his reply brief and through coun-

sel at oral argument raise another troubling attack on the interpreter,

namely, that she let questions of religion interfere with her ability to inter-

pret competently. See Appellant’s Reply Br. at 2. This argument ignores

the context in which the question of religion arose. When Singh’s own

counsel was questioning him regarding the founders of the Sikh religion,

the IJ asked the counsel to spell the names of the figures Singh had named.

When Singh’s counsel sought to defer to the interpreter’s ability to spell

the names in English, the interpreter, by way of explaining her inability

to spell names of figures with which she was unfamiliar, noted that she

was not an adherent of the Sikh religion. Viewed in this context, the inter-

preter’s discussion of religion raises no concerns.

24 SINGH v. HOLDER

English, "it is very important that the Court hears your appli-

cation and it’s very important that I understand your story");

id. at 97 (IJ noting use of simultaneous interpreter at contin-

ued removal proceeding); id. at 105-06 (IJ informing Singh of

procedures for communicating with and through interpreter).

Although Singh identifies some areas where he believes the

interpretation was inadequate, nothing in the record suggests

such errors (if they occurred) denied Singh a full and fair

hearing. As the Board noted, many of the untranslated por-

tions of the transcript appear to have been left untranslated for

legitimate reasons, including that Singh had started answering

a question before the interpreter had completed her interpreta-

tion. Singh’s brief exhaustively catalogues the various points

where "indiscernible" appears in the transcript, but never

explains—nor is it apparent—why these occasional ellipses

taint the entire proceeding with unfairness. Further vitiating

Singh’s argument that the proceeding was not full and fair is

the fact Singh appears to have more than a basic grasp of

English.

Even assuming there were times the interpreter’s work was

less than perfect, and that such imperfection violates Singh’s

right to a full and fair hearing, Singh still cannot establish that

he was prejudiced by such a violation. As the government

notes, Singh "fails to identify a single instance in which the

omitted words changed or obscured the general meaning of

his testimony." Appellee’s Br. at 35. In his reply brief, Singh

makes the broad claim that "an incorrect or incomplete

translation is the functional equivalent of no translation."

Reply Br. at 1.19 He also criticizes the absence of a bilingual

19

This pithy formulation comes from Perez-Lastor, 208 F.3d at 778.

That court identified three types of evidence which tend to prove a transla-

tion was incompetent: (1) direct evidence of incorrectly translated words;

(2) unresponsive answers by the witness, which provide circumstantial

evidence of translation problems; and (3) a witness’s expression of diffi-

culty understanding what is said. Id. at 778. At most, Singh can point to

his unresponsive answers—which may or may not have anything to do

with the interpreter.

SINGH v. HOLDER 25

transcript.20 Id. at 2-3. But Singh still fails to explain in what

way the supposedly inadequate work of the interpreter trans-

gressed his rights "in such a way as is likely to impact the

results of the proceedings." Rusu, 296 F.3d at 320-21. It is on

this obstacle Singh’s due process claim ultimately founders.

III.

For the foregoing reasons, Singh’s petition for review is

DENIED.

20

At oral argument, the government asserted that Singh had failed to

exhaust this issue before the Board below. We need not determine, how-

ever, whether Singh properly raised the quality of the transcripts below

because we conclude he cannot demonstrate prejudice in any event.