Kayoon v. Garland ( 2023 )

21-6174
Kayoon v. Garland
BIA
Ruehle, IJ
A205 152 957
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 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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 15th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 REAAZ HASIB KAYOON,
14 Petitioner,
15
16 v. 21-6174
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew K. Borowski, Borowski Witmer
24 Immigration Lawyers, Buffalo, NY.
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney
2 General; Anthony C. Payne, Assistant
3 Director; Jessica D. Strokus, Trial Attorney,
4 Office of Immigration Litigation, United
5 States Department of Justice, Washington,
6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Reaaz Hasib Kayoon, a native and citizen of Guyana, seeks review
11 of a February 26, 2021 decision of the BIA affirming an August 8, 2018 decision of
12 an Immigration Judge (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture (“CAT”). In re Reaaz
14 Hasib Kayoon, No. A205 152 957 (B.I.A. Feb. 26, 2021), aff’g No. A205 152 957
15 (Immig. Ct. Buffalo Aug. 8, 2018). Kayoon asserts past persecution and a fear of
16 future persecution in Guyana on account of his sexual orientation. Because we
17 conclude that substantial evidence supports the adverse credibility finding, we
18 deny the petition. We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review adverse credibility
2
1 determinations “under the substantial evidence standard.” Hong Fei Gao v.
2 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Under this standard, we treat
3 administrative findings of fact as “conclusive unless any reasonable adjudicator
4 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
5 The IJ may, “[c]onsidering the totality of the circumstances,” base a
6 credibility determination on “the inherent plausibility of the applicant’s . . .
7 account, the consistency between the applicant’s or witness’s written and oral
8 statements (whenever made and whether or not under oath, and considering the
9 circumstances under which the statements were made), the internal consistency of
10 each such statement, the consistency of such statements with other evidence of
11 record . . . , and any inaccuracies or falsehoods in such statements, without regard
12 to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
13 applicant’s claim, or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer
14 . . . to an IJ’s credibility determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder could make such an
16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
17 accord Hong Fei Gao, 891 F.3d at 76. “Where the IJ’s adverse credibility finding is
18 based on specific examples of inconsistent statements or contradictory evidence, a
3
1 reviewing court will generally not be able to conclude that a reasonable
2 adjudicator was compelled to find otherwise.” Xiu Xia Lin, 534 F.3d at 166
3 (internal quotation marks and ellipses omitted).
4 Substantial evidence supports the adverse credibility determination. First,
5 the IJ properly relied on Kayoon’s implausible testimony concerning the passport
6 he used to enter the United States in 2007. See 8 U.S.C. § 1158(b)(1)(B)(iii). Kayoon
7 conceded that he had used a passport in the name of Vicky Ram, but testified that
8 he did not know who Vicky Ram was or anything about him. However, he was
9 referred to secondary questioning when he entered the United States as Vicky Ram
10 and was allowed to enter because he confirmed information regarding the siblings
11 of Vicky Ram. Given that confirmation, the IJ reasonably found Kayoon’s
12 purported lack of knowledge of Vicky Ram implausible. See Siewe v. Gonzales, 480
13 F.3d 160, 167 (2d Cir. 2007) (“Where there are two permissible views of the
14 evidence, the factfinder’s choice between them cannot be clearly erroneous.
15 Rather, a reviewing court must defer to that choice so long as the deductions are
16 not illogical or implausible.” (internal quotation marks and citations omitted)).
17 The agency also reasonably relied on Kayoon’s inconsistent statements and
18 omissions about whether he was attacked after being seen with another man. See
4
1 8 U.S.C. § 1158(b)(1)(B)(iii). He first testified that he was attacked because he was
2 seen kissing a man he was in a relationship with; he later testified that he was
3 uncertain if they were seen. His application omitted the incident entirely and
4 listed the circumstances of his alleged attacks, none of which matched his
5 testimony. Given the conflicting descriptions, the agency was not required to
6 accept his explanation that he did not remember to include this incident in his
7 affidavit. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
8 do more than offer a plausible explanation for his inconsistent statements to secure
9 relief; he must demonstrate that a reasonable fact-finder would be compelled to
10 credit his testimony.” (internal quotation marks omitted)). Moreover, as this was
11 the sole incident directly linking the alleged assaults to his sexual orientation, the
12 agency did not err in relying on the omission because this was information that an
13 applicant “would reasonably have been expected to disclose under the . . .
14 circumstances.” Hong Fei Gao, 891 F.3d at 79.
15 Other inconsistencies and omissions bolster the adverse credibility
16 determination. Kayoon made additional inconsistent statements about who knew
17 he was bisexual. He testified that he was fired from a job when his employer found
18 out he was bisexual, that only his parents and grandmother knew that he was
5
1 bisexual, and that other people witnessed him in a relationship. Kayoon’s
2 statements also were not wholly consistent about persecution he witnessed in
3 Guyana. He testified and mentioned in his interview with a psychologist that he
4 witnessed the police beating gay people, but he did not mention that fact in his
5 affidavit.
6 The agency also reasonably concluded that Kayoon’s credibility was further
7 undermined by the lack of corroborating evidence. “An applicant’s failure to
8 corroborate his or her testimony may bear on credibility, because the absence of
9 corroboration in general makes an applicant unable to rehabilitate testimony that
10 has already been called into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
11 Cir. 2007). The burden was on Kayoon to establish his eligibility for asylum and
12 the IJ was permitted to require corroboration given the credibility issues. See id.;
13 see also 8 U.S.C. § 1158(b)(1)(B)(i)–(ii); Wei Sun v. Sessions, 883 F.3d 23, 31 (2d Cir.
14 2018) (holding that “the [noncitizen] bears the ultimate burden of introducing . . .
15 evidence without prompting from the IJ” (quoting Liu v. Holder, 575 F.3d 193, 198
16 (2d Cir. 2009)).
17 Relatedly, we find no due process violation in the IJ’s rejection of a letter
18 purporting to corroborate medical treatment submitted on the day of decision
6
1 approximately six months after the merits hearing. Evidence is due at the latest
2 15 days before the merits hearing. See Immigration Court Practice Manual, Chapt.
3 3.1(b)(ii)(A). “If an application or document is not filed within the time set by the
4 [IJ], the opportunity to file that application or document shall be deemed waived.”
5 8 C.F.R. § 1003.31(c). 1 Given Kayoon’s testimony that it only took a phone call to
6 his uncle to obtain the letter, nothing prevented him from obtaining it earlier.
7 Accordingly, he was not deprived of due process. See Burger v. Gonzales, 498 F.3d
8 131, 134 (2d Cir. 2007) (“To establish a violation of due process, a[] [noncitizen]
9 must show that []he was denied a full and fair opportunity to present h[is] claims
10 or that the IJ or BIA otherwise deprived h[im] of fundamental fairness.” (internal
11 quotation marks omitted)).
12 Kayoon’s implausible testimony, the omissions and inconsistencies, and the
13 lack of corroboration provide substantial evidence for the adverse credibility
14 determination. See Xiu Xia Lin, 534 F.3d at 166–67; Biao Yang, 496 F.3d at 273. The
15 adverse credibility determination is dispositive of asylum, withholding of
1This citation is to the version of the regulations in effect at the time of the IJ’s decision.
The proposition is now found in sub-section (h) of § 1003.31.
7
1 removal, and CAT protection because all three forms of relief were based on the
2 same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is DENIED. All pending
4 motions and applications are DENIED and stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
8