Kola v. Lynch ( 2016 )

15-890
Kola v. Lynch
BIA
Wright, IJ
A200 172 957
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of June, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 GENTJAN KOLA, AKA THEODHOROS
14 STENIDIS
15 Petitioner,
16 v. 15-890
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gentjan Kola, pro se, Warren,
24 Michigan.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Jesse M.
28 Bless, Senior Litigation Counsel;
29 Neelam Ihsanullah, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Gentjan Kola, a native and citizen of Albania,
6 seeks review of a March 10, 2015, decision of the BIA affirming
7 a March 7, 2013, decision of an Immigration Judge (“IJ”) denying
8 Kola’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Gentjan Kola, No. A200 172 957 (B.I.A. Mar. 10, 2015), aff’g
11 No. A200 172 957 (Immig. Ct. N.Y. City Mar. 7, 2013). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed “the
15 IJ’s decision, including the portions not explicitly discussed
16 by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
19 562 F.3d 510, 513 (2d Cir. 2009).
20 For asylum applications, like Kola’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
2
1 circumstances,” base a credibility finding on an asylum
2 applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies between the
4 applicant’s statements and other evidence, “without regard to
5 whether” they go “to the heart of the applicant’s claim.” 8
6 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d
7 162, 163-64 (2d Cir. 2008). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder could
10 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
11 at 167. Here, the IJ reasonably relied on Kola’s demeanor, his
12 lack of corroborating evidence, and inconsistencies among his
13 testimony, asylum application, and documentary evidence in
14 reaching the adverse credibility determination.
15 “[D]emeanor is paradigmatically the sort of evidence that
16 a fact-finder is best positioned to evaluate.” Li Zu Guan v.
17 INS, 453 F.3d 129, 140 (2d Cir. 2006). Accordingly, we grant
18 “particular deference” in applying the substantial evidence
19 standard to credibility findings based on demeanor. Shu Wen
20 Sun v. BIA, 510 F.3d 377, 380-81 (2d Cir. 2007). The IJ’s
21 demeanor findings, that Kola struggled to answer questions
3
1 regarding dates, offered vague testimony, and exaggerated his
2 testimony on at least one occasion, are supported by the record.
3 The demeanor finding and the adverse credibility
4 determination as a whole are further supported by specific
5 inconsistencies in the record identified the by IJ. See Li Hua
6 Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
7 (“We can be still more confident in our review of observations
8 about an applicant’s demeanor where, as here, they are supported
9 by specific examples of inconsistent testimony.”). For
10 instance, Kola was inconsistent as to medical care following
11 an alleged January 2011 arrest. He testified that when he was
12 released from police custody, a doctor named Dava Ejaku visited
13 his house several times; Kola denied going to a hospital.
14 However, he submitted a medical report stating that he was
15 treated in a medical institution by a Dr. Ela Reci. Kola was
16 unable to provide any plausible explanation for these
17 discrepancies, other than stating that he had made a mistake,
18 did not understand the document, and could acquire a document
19 from Dr. Ejaku.
20 Kola also omitted material information from his
21 application. He testified that he was fined and beaten for
4
1 being an election monitor, specifically that opposition members
2 came to his house, demanded payment, and beat him. His asylum
3 application omits any mention of a beating. This omission
4 strongly supports the adverse credibility determination
5 because it relates to “an example of the very persecution from
6 which [Kola] sought asylum.” Xian Tuan Ye v. Dep’t of Homeland
7 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (internal quotation marks
8 omitted); see also Xiu Xia Lin, 534 F.3d at 166 n.3 (“An
9 inconsistency and an omission are . . . functionally
10 equivalent.”). While the IJ was mistaken in finding that Kola
11 had backtracked from this testimony (the IJ relied on testimony
12 regarding the previous day’s activities), this limited error
13 does not require a remand: the other findings, particularly the
14 inconsistencies regarding the beating and medical care, make
15 clear that the result would not have changed absent the error.
16 See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401-02
17 (2d Cir. 2005) (holding that remand is unnecessary when it is
18 “clear that the same decision would have been reached in the
19 absence of the errors”).
20 As the IJ found, Kola’s lack of corroborating evidence
21 further undermined his credibility. See Biao Yang v. Gonzales,
5
1 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
2 corroborate his or her testimony may bear on credibility,
3 because the absence of corroboration in general makes an
4 applicant unable to rehabilitate testimony that has already
5 been called into question.”). Kola failed to provide evidence
6 that his car was bombed despite asserting that he had reported
7 the bombing to authorities and had evidence of it. Also, Kola
8 failed to provide a statement from his brother, who allegedly
9 suffered the same persecution Kola did. And, the IJ reasonably
10 gave limited weight to a letter from Kola’s father because it
11 was from an interested witness not subject to
12 cross-examination. See Xiao Ji Chen v. U.S. Dep’t of Justice,
13 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
14 accorded to evidence lies largely within the discretion of the
15 agency); Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
16 (deferring to the agency’s decision to afford little weight to
17 a relative’s letter).
18 Given the inconsistencies, demeanor finding, and lack of
19 corroboration, substantial evidence supports the agency’s
20 adverse credibility determination, which is dispositive of all
21 of Kola’s claims for relief. See Xiu Xia Lin, 534 F.3d at 167;
6
1 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
2 Moreover, because Kola did not challenge the IJ’s denial of CAT
3 relief before the BIA or in his brief, the claim is also
4 unexhausted and waived. See Lin Zhong v. U.S. Dep’t of Justice,
5 480 F.3d 104, 107 n.1 (2d Cir. 2007). Finally, Kola’s argument
6 that the IJ was prejudiced is not supported by the record. An
7 adverse ruling, on its own, does not constitute judicial bias.
8 See Liteky v. United States, 510 U.S. 540, 555 (1994).
9 For the foregoing reasons, the petition for review is
10 DENIED.
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
7