Kazol v. Garland

21-6131
Kazol v. Garland
BIA
Douchy, IJ
A206 913 600
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 22nd day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 MICHAEL H. PARK,
10 ALISON J. NATHAN,
11 Circuit Judges.
12 _____________________________________
13
14 SANAULLAH KAZOL,
15 Petitioner,
16
17 v. 21-6131
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, Esq., New
25 York, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting
28 Assistant Attorney General;
1 Sabatino F. Leo, Assistant
2 Director; Katie E. Rourke, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Sanaullah Kazol, a native and citizen of
13 Bangladesh, seeks review of a February 26, 2021 decision of
14 the BIA affirming an October 2, 2018 decision of an
15 Immigration Judge (“IJ”) denying his application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Sanaullah Kazol, No. A206 913
18 600 (B.I.A. Feb. 26, 2021), aff’g No. A206 913 600 (Immig.
19 Ct. N.Y.C. Oct. 2, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 We have reviewed both the BIA’s and IJ’s opinions. See
22 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
23 We review an adverse credibility determination “under the
24 substantial evidence standard,” Hong Fei Gao v. Sessions, 891
25 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings
26 of fact are conclusive unless any reasonable adjudicator
2
1 would be compelled to conclude to the contrary,” 8 U.S.C.
2 § 1252(b)(4)(B).
3 “Considering the totality of the circumstances, and all
4 relevant factors, a trier of fact may base a credibility
5 determination on the demeanor, candor, or responsiveness of
6 the applicant or witness, the inherent plausibility of the
7 applicant’s or witness’s account, the consistency between the
8 applicant’s or witness’s written and oral statements . . . ,
9 the internal consistency of each such statement, [and] the
10 consistency of such statements with other evidence of record
11 . . . , without regard to whether an inconsistency,
12 inaccuracy, or falsehood goes to the heart of the applicant’s
13 claim, or any other relevant factor.” Id.
14 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
15 determination unless, from the totality of the circumstances,
16 it is plain that no reasonable fact-finder could make such an
17 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
18 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
19 at 76. Kazol alleged that members of the Awami League came
20 to his shop and assaulted him on account of his support for
21 the Bangladesh National Party (“BNP”) and beat and killed a
3
1 friend who was with him. Substantial evidence supports the
2 agency’s adverse credibility determination.
3 The only exhausted issue, and thus the only issue
4 properly before us, is Kazol’s challenge to the inconsistency
5 as to what happened to the customers in his store when the
6 members of the Awami League arrived. Foster v. INS, 376 F.3d
7 75, 78 (2d Cir. 2004) (“To preserve a claim, we require
8 petitioner to raise issues to the BIA in order to preserve
9 them for judicial review.” (quotation marks and brackets
10 omitted)); accord Quituizaca v. Garland, 52 F.4th 103, 116
11 (2d Cir. 2022). However, even if Kazol had exhausted all his
12 arguments, substantial evidence supports the adverse
13 credibility determination.
14 The IJ reasonably relied on Kazol’s demeanor, noting that
15 his testimony was frequently non-responsive and vague, and
16 that many of his answers were confusing. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii). We give “particular weight” to this
18 finding because “the IJ has the unique advantage . . . of
19 having heard directly from the applicant.” Majidi v.
20 Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (quotation marks
21 omitted). The IJ was not compelled to assume that Kazol’s
22 lack of responsiveness was attributable to something other
4
1 than a lack of truthfulness, particularly as Kazol confirmed
2 that he understood the questions. See Gao v. Barr, 968 F.3d
3 137, 149 (2d Cir. 2020) (noting that an IJ’s observation “that
4 [the petitioner] was sometimes ‘non-responsive’ to questions
5 . . . can raise concerns that a witness's testimony is based
6 more on a script than on actual experience”).
7 The agency also reasonably relied on inconsistencies in
8 Kazol’s statements and between his statements and supporting
9 documents. See 8 U.S.C. § 1158(b)(1)(B)(iii). The record
10 reflects inconsistencies as to (1) what happened to the
11 customers in his store when the Awami League attacked; (2)
12 the medical attention Kazol received for his injuries
13 following the alleged attack; and (3) what happened to the
14 body of his friend whom he alleged was killed by the Awami
15 League. The IJ was not compelled to credit his explanations
16 for these inconsistencies, see Majidi, 430 F.3d at 80 (“A
17 petitioner must do more than offer a plausible explanation
18 for his inconsistent statements to secure relief; he must
19 demonstrate that a reasonable fact-finder would be compelled
20 to credit his testimony.” (quotation marks omitted)), and the
21 agency may rely on minor or tangential inconsistencies so
22 long as the totality of the circumstances supports the adverse
5
1 credibility determination, Xiu Xia Lin, 534 F.3d at 167 (“Even
2 where an IJ relies on discrepancies or lacunae that, if taken
3 separately, concern matters collateral or ancillary to the
4 claim, the cumulative effect may nevertheless be deemed
5 consequential by the fact-finder.” (quotation marks and
6 brackets omitted)).
7 The agency also reasonably relied on a lack of reliable
8 corroboration. See Biao Yang v. Gonzales, 496 F.3d 268, 273
9 (2d Cir. 2007) (“An applicant’s failure to corroborate his or
10 her testimony may bear on credibility, because the absence of
11 corroboration in general makes an applicant unable to
12 rehabilitate testimony that has already been called into
13 question.”). Kazol did not provide letters from the doctor
14 who treated him initially or from the family members or
15 friends who allegedly brought him to the hospital. And the
16 corroboration he did provide—an article and a letter from
17 another doctor—was inconsistent with his testimony.
18 In sum, the IJ’s demeanor finding, the inconsistencies,
19 and the lack of reliable corroboration constitute substantial
20 evidence for the adverse credibility determination. See 8
21 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
22 The adverse credibility determination is dispositive of
6
1 asylum, withholding of removal and CAT relief because all
2 three forms of relief were based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
4 Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
7