Kumal v. Garland ( 2022 )

20-1728
Kumal v. Garland
BIA
Zagzoug, IJ
A208 418 009
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 21st day of July, two thousand twenty-two.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KUMAR KUMAL,
14 Petitioner,
15
16 v. 20-1728
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
24 New York, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Sabatino F. Leo,
28 Assistant Director; Jaclyn G.
1 Hagner, Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Kumar Kumal, a native and citizen of Nepal,
11 seeks review of a May 4, 2020, decision of the BIA affirming
12 a May 3, 2018, decision of an Immigration Judge (“IJ”) denying
13 Kumal’s application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Kumar Kumal, No. A208 418 009 (B.I.A. May 4, 2020), aff’g No.
16 A208 418 009 (Immig. Ct. N.Y. City May 3, 2018). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history.
19 Under the circumstances, we have considered both the IJ’s
20 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland
21 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B) (“the administrative findings of fact are
24 conclusive unless any reasonable adjudicator would be
25 compelled to conclude to the contrary”); Hong Fei Gao v.
2
1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
2 credibility determination under substantial evidence
3 standard).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant or witness, the inherent plausibility of the
8 applicant’s or witness’s account, the consistency between the
9 applicant’s or witness’s written and oral statements . . . ,
10 the internal consistency of each such statement, [and] the
11 consistency of such statements with other evidence of record
12 . . . without regard to whether an inconsistency, inaccuracy,
13 or falsehood goes to the heart of the applicant’s claim.”
14 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
15 credibility determination unless, from the totality of the
16 circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
19 Gao, 891 F.3d at 76.
20 Substantial evidence supports the agency’s determination
21 that Kumal was not credible as to his claim that Maoists
22 attacked and threatened him on account of his political
3
1 activities for the Nepali Congress Party. The IJ reasonably
2 found Kumal’s testimony evasive and vague, noting that he
3 repeatedly claimed to have difficulty answering
4 straightforward questions on cross-examination. See
5 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d
6 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
7 deference is given to the trier of fact’s assessment of
8 demeanor). Those findings are supported by the record and
9 bolstered by the fact that Kumal’s vague testimony that he
10 knew his father belonged to the Nepali Congress Party but did
11 not know anything about his political activities was
12 inconsistent with his mother’s letter and with his own
13 affidavit, in which he indicated he had attended party
14 meetings and assemblies with his father and that his father
15 influenced his political activities. See Li Hua Lin v. U.S.
16 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be
17 still more confident in our review of observations about an
18 applicant’s demeanor where, as here, they are supported by
19 specific examples of inconsistent testimony.”). Further, the
20 agency did not err in relying on Kumal’s vague testimony
21 because the IJ and attorneys probed for details regarding the
22 claims throughout his hearing. See Jin Shui Qiu v. Ashcroft,
4
1 329 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives
2 very spare testimony, . . . the IJ . . . may fairly wonder
3 whether the testimony is fabricated . . . [and] may wish to
4 probe for incidental details . . . .”), overruled in part on
5 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
6 F.3d 296, 305 (2d Cir. 2007).
7 The agency also reasonably relied on the inconsistency
8 in Kumal’s statements regarding his own political activities,
9 his implausible testimony regarding his second encounter with
10 Maoists, and his failure to initially reveal a Maoist attack
11 on his mother and sister. See 8 U.S.C. § 1158(b)(1)(B)(iii);
12 Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007)
13 (recognizing that adverse credibility determination may be
14 based on inherent implausibility if the finding “is tethered
15 to the evidentiary record” or “record facts . . . viewed in
16 the light of common sense and ordinary experience”). Kumal
17 did not provide compelling explanations for these
18 discrepancies. See Majidi, 430 F.3d at 80 (“A petitioner
19 must do more than offer a plausible explanation for his
20 inconsistent statements to secure relief; he must demonstrate
21 that a reasonable fact-finder would be compelled to credit
22 his testimony.” (quotation marks omitted)).
5
1 Given the demeanor, inconsistency, and implausibility
2 findings, the agency’s adverse credibility determination is
3 supported by substantial evidence. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii). That determination was dispositive of
5 asylum, withholding of removal, and CAT relief because all
6 three claims were based on the same factual predicate. See
7 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
8 Because “[a]s a general rule courts and agencies are not
9 required to make findings on issues the decision of which is
10 unnecessary to the results they reach,” INS v. Bagamasbad,
11 429 U.S. 24, 25 (1976), we do not reach the agency’s
12 alternative findings regarding corroboration and burden of
13 proof.
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
20
6