Harjit SINGH, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 390 F. App'x 51

SUMMARY ORDER Petitioner Harjit Singh, a native and citizen of India, seeks review of the July 10, 2009, order of the BIA affirming the April 28, 2008, decision of Immigration Judge (“IJ”)Steven R. Abrams denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Harjit Singh, No. [ AXXX XXX XXX ] (B.I.A. July 10, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City April 23, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the IJ’s decision as modified by the BIA. See Dong Gao v. BIA 482 F.3d 122, 125 (2d Cir.2007). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). The IJ found that the petitioner had not established the timeliness of his asylum application and therefore pretermitted the asylum claim. However, the IJ also considered the merits of the asylum claim and rejected it.

Without considering the timeliness issue, the BIA agreed with the IJ that Singh failed to establish his eligibility for asylum, withholding of removal, and CAT relief based solely on his failure to sufficiently corroborate his otherwise credible testimony. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Kyaw Zwar Tun v. U.S.

INS, 445 F.3d 554, 563 (2d Cir.2006) (holding that “[a]n applicant may be required to provide any reasonably available documentation to corroborate the elements of her claim, or explain why such documentation is unavailable, and the [agency] may rely on the failure to do so in finding that the applicant has not met her burden of proof’). In doing so, it affirmed the IJ’s finding that none of the documents in the record indicated that Singh had ever been arrested, detained, or beaten by the Indian police.

However, as Singh contends, neither the IJ’s nor the BIA’s decisions indicate that they considered an affidavit from Parkash Kaur, the Sarpanch of Pandori Lubana village, stating that Singh was arrested twice in 2003, and that the police “tortured him during the time he was in custody.” While we generally “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” see Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006), the agency’s evident failure to consider documentary evidence in the record constitutes reversible error, see Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006); see also Yan Chen v. Gonzales, 417 F.3d 268, 272-73 (2d Cir.2005).

In this case, we cannot presume that the agency considered the Kaur affidavit in view of the IJ’s explicit statement that “[w]e do not have any documents that indicate that [petitioner] had in fact been beaten at any point in time.” Because we cannot predict with confidence that the BIA would reach the same conclusion, i.e., that Singh failed to adequately corroborate his claim, if it considered the Kaur affidavit describing his arrest and torture, remand to the BIA is appropriate. Cf. Mamadou Aliou Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 235 (2d Cir.2008).

For the foregoing reasons, the petition for review is GRANTED and the proceedings REMANDED to the BIA for further consideration consistent with this order. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).