20-1712 Kalluci v. Garland BIA Conroy, IJ A200 648 012 & 206 301 609/610 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 Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 23rd day of November, two thousand twenty-two. 4 5 PRESENT: 6 RICHARD J. SULLIVAN, 7 WILLIAM J. NARDINI, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 BRIXHIDA KALLUCI, LORNA KALLUCI, 13 AGNES KALLUCI, 14 15 Petitioners, 16 v. No. 20-1712 17 NAC 18 MERRICK B. GARLAND, United States 19 Attorney General, 20 21 Respondent. 22 _____________________________________ 1 FOR PETITIONERS: Gregory Marotta, Law Office of Gregory 2 Marotta, Vernon, NJ. 3 4 FOR RESPONDENT: Bryan Boynton, Acting Assistant Attorney 5 General, Civil Division; Michelle Latour, 6 Deputy Director, Office of Immigration 7 Litigation; Spencer Shucard, Trial Attorney, 8 Office of Immigration Litigation, United 9 States Department of Justice, Washington, 10 DC.
11 UPON DUE CONSIDERATION of this petition for review of a decision of
12 the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
13 AND DECREED that the petition for review is DENIED.
14 Petitioners Brixhida Kalluci (“Kalluci”), and her daughters Lorna and Agnes
15 Kalluci, all natives and citizens of Albania, seek review of a May 20, 2020 decision
16 of the BIA affirming a May 4, 2018 decision of an Immigration Judge (“IJ”) denying
17 Kalluci’s application for asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”), to which she had named Lorna and Agnes
19 as derivative beneficiaries. In re Brixhida Kalluci, et al., Nos. A200 648 012 & 206
20 301 609/610 (B.I.A. May 20, 2020), aff’g No. A 200 648 012 & 206 301 609/610 (Immig.
21 Ct. N.Y. City May 4, 2018). We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 In her brief, Kalluci challenges the IJ’s adverse-credibility finding, which
2 1 was its sole basis for denying her claims for relief. 1 We review an adverse-
2 credibility determination for substantial evidence, Hong Fei Gao v. Sessions, 891
3 F.3d 67, 76 (2d Cir. 2018), and will deviate from such a determination only if, “from
4 the totality of the circumstances, it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Id. (internal quotation marks omitted).
6 On review, we ask “whether the agency has provided ‘specific, cogent reasons for
7 the adverse credibility finding and whether those reasons bear a legitimate nexus
8 to the finding.’” Id. at 77 (quoting Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
9 Cir. 2008)). An adverse-credibility determination may be based on, among other
10 factors, inconsistencies “between the applicant’s or witness’s written and oral
11 statements” as well as “any inaccuracies or falsehoods in such statements, without
12 regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of
13 the applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
14 Here, substantial evidence supports the agency’s adverse-credibility
15 determination, including significant inconsistencies between Kalluci’s asylum
16 interview, hearing testimony, and documentary evidence. See id. During her
17 asylum interview, Kalluci stated that, between 2:00 p.m. and 5:00 p.m. on July 1,
1 Because the adverse-credibility determination is dispositive of all of Kalluci’s claims, we do not reach the government’s argument that Kalluci waived her claims for withholding of removal and CAT relief. 3 1 2013, she was kidnapped, taken to the woods, and raped by three men, who
2 threatened to harm her again if she continued her political activity. According to
3 Kalluci, this incident motivated her to leave Albania and to apply for a tourist visa
4 at the U.S. embassy. At her hearing, however, Kalluci testified that she was
5 kidnapped and raped later in the day on July 1, 2013 – at around 8:00 p.m.
6 Although a discrepancy of a few hours might not ordinarily be cause for concern,
7 the timeline here was crucial given that Kalluci’s visa application – which she
8 admitted she submitted in person at the embassy – reflected that it was received
9 and time-stamped on July 1, 2013 at 4:38 p.m. In other words, the documentary
10 evidence revealed that Kalluci was present at the embassy filing a visa application
11 during or before the time that she was allegedly being kidnapped and sexually
12 assaulted – the incident that purportedly motivated her to file a visa application
13 in the first place.
14 The agency was not required to accept Kalluci’s explanation that she was
15 mistaken during her asylum interview due to stress. See Majidi v. Gonzales, 430
16 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible
17 explanation for his inconsistent statements to secure relief; he must demonstrate
18 that a reasonable fact-finder would be compelled to credit his testimony.” (internal
19 quotation marks omitted)); see also Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir.
4 1 2006) (holding that an agency may rely on record of asylum interview as a basis
2 for an adverse-credibility determination if it contains a “meaningful, clear, and
3 reliable summary of the statements made by the applicant at the interview”
4 (quoting In re S-S-, 21 I. & N. Dec. 121, 124 (B.I.A. 1995)). And in any event,
5 Kalluci’s hearing testimony was also inconsistent with the visa application, since
6 she reiterated at the hearing that “an incident happened to me on the 1st of July
7 that after that pretty much made up my mind and convinced me I had to leave my
8 country.” Certified Admin. Record at 112–13. Kalluci was adamant that the
9 kidnapping and assault took place in the evening of July 1st, and that “soon after
10 this incident, [she] and [her] husband decided [they] had to leave” Albania. Id. at
11 118 (emphasis added). But the visa application bore a timestamp indicating that
12 Kalluci actually arrived at the embassy to initiate the visa process earlier in the day
13 on July 1st – before the alleged incident took place. The IJ also did not err in
14 granting significant weight to the record of the visa application after noting that it
15 appeared to have been produced in the normal course of business. See Y.C. v.
16 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination
17 of the weight afforded to an alien’s documentary evidence.”); Felzcerek v. INS, 75
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20-1712 Kalluci v. Garland BIA Conroy, IJ A200 648 012 & 206 301 609/610 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 Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 23rd day of November, two thousand twenty-two. 4 5 PRESENT: 6 RICHARD J. SULLIVAN, 7 WILLIAM J. NARDINI, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 BRIXHIDA KALLUCI, LORNA KALLUCI, 13 AGNES KALLUCI, 14 15 Petitioners, 16 v. No. 20-1712 17 NAC 18 MERRICK B. GARLAND, United States 19 Attorney General, 20 21 Respondent. 22 _____________________________________ 1 FOR PETITIONERS: Gregory Marotta, Law Office of Gregory 2 Marotta, Vernon, NJ. 3 4 FOR RESPONDENT: Bryan Boynton, Acting Assistant Attorney 5 General, Civil Division; Michelle Latour, 6 Deputy Director, Office of Immigration 7 Litigation; Spencer Shucard, Trial Attorney, 8 Office of Immigration Litigation, United 9 States Department of Justice, Washington, 10 DC.
11 UPON DUE CONSIDERATION of this petition for review of a decision of
12 the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
13 AND DECREED that the petition for review is DENIED.
14 Petitioners Brixhida Kalluci (“Kalluci”), and her daughters Lorna and Agnes
15 Kalluci, all natives and citizens of Albania, seek review of a May 20, 2020 decision
16 of the BIA affirming a May 4, 2018 decision of an Immigration Judge (“IJ”) denying
17 Kalluci’s application for asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”), to which she had named Lorna and Agnes
19 as derivative beneficiaries. In re Brixhida Kalluci, et al., Nos. A200 648 012 & 206
20 301 609/610 (B.I.A. May 20, 2020), aff’g No. A 200 648 012 & 206 301 609/610 (Immig.
21 Ct. N.Y. City May 4, 2018). We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 In her brief, Kalluci challenges the IJ’s adverse-credibility finding, which
2 1 was its sole basis for denying her claims for relief. 1 We review an adverse-
2 credibility determination for substantial evidence, Hong Fei Gao v. Sessions, 891
3 F.3d 67, 76 (2d Cir. 2018), and will deviate from such a determination only if, “from
4 the totality of the circumstances, it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Id. (internal quotation marks omitted).
6 On review, we ask “whether the agency has provided ‘specific, cogent reasons for
7 the adverse credibility finding and whether those reasons bear a legitimate nexus
8 to the finding.’” Id. at 77 (quoting Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
9 Cir. 2008)). An adverse-credibility determination may be based on, among other
10 factors, inconsistencies “between the applicant’s or witness’s written and oral
11 statements” as well as “any inaccuracies or falsehoods in such statements, without
12 regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of
13 the applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
14 Here, substantial evidence supports the agency’s adverse-credibility
15 determination, including significant inconsistencies between Kalluci’s asylum
16 interview, hearing testimony, and documentary evidence. See id. During her
17 asylum interview, Kalluci stated that, between 2:00 p.m. and 5:00 p.m. on July 1,
1 Because the adverse-credibility determination is dispositive of all of Kalluci’s claims, we do not reach the government’s argument that Kalluci waived her claims for withholding of removal and CAT relief. 3 1 2013, she was kidnapped, taken to the woods, and raped by three men, who
2 threatened to harm her again if she continued her political activity. According to
3 Kalluci, this incident motivated her to leave Albania and to apply for a tourist visa
4 at the U.S. embassy. At her hearing, however, Kalluci testified that she was
5 kidnapped and raped later in the day on July 1, 2013 – at around 8:00 p.m.
6 Although a discrepancy of a few hours might not ordinarily be cause for concern,
7 the timeline here was crucial given that Kalluci’s visa application – which she
8 admitted she submitted in person at the embassy – reflected that it was received
9 and time-stamped on July 1, 2013 at 4:38 p.m. In other words, the documentary
10 evidence revealed that Kalluci was present at the embassy filing a visa application
11 during or before the time that she was allegedly being kidnapped and sexually
12 assaulted – the incident that purportedly motivated her to file a visa application
13 in the first place.
14 The agency was not required to accept Kalluci’s explanation that she was
15 mistaken during her asylum interview due to stress. See Majidi v. Gonzales, 430
16 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible
17 explanation for his inconsistent statements to secure relief; he must demonstrate
18 that a reasonable fact-finder would be compelled to credit his testimony.” (internal
19 quotation marks omitted)); see also Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir.
4 1 2006) (holding that an agency may rely on record of asylum interview as a basis
2 for an adverse-credibility determination if it contains a “meaningful, clear, and
3 reliable summary of the statements made by the applicant at the interview”
4 (quoting In re S-S-, 21 I. & N. Dec. 121, 124 (B.I.A. 1995)). And in any event,
5 Kalluci’s hearing testimony was also inconsistent with the visa application, since
6 she reiterated at the hearing that “an incident happened to me on the 1st of July
7 that after that pretty much made up my mind and convinced me I had to leave my
8 country.” Certified Admin. Record at 112–13. Kalluci was adamant that the
9 kidnapping and assault took place in the evening of July 1st, and that “soon after
10 this incident, [she] and [her] husband decided [they] had to leave” Albania. Id. at
11 118 (emphasis added). But the visa application bore a timestamp indicating that
12 Kalluci actually arrived at the embassy to initiate the visa process earlier in the day
13 on July 1st – before the alleged incident took place. The IJ also did not err in
14 granting significant weight to the record of the visa application after noting that it
15 appeared to have been produced in the normal course of business. See Y.C. v.
16 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination
17 of the weight afforded to an alien’s documentary evidence.”); Felzcerek v. INS, 75
18 F.3d 112, 116 (2d Cir. 1996) (holding that “records made by public officials in the
19 ordinary course of their duties . . . evidence strong indicia of reliability”).
5 1 The agency reasonably concluded that other inconsistencies in the record,
2 concerning whether Kalluci knew who had killed her father and how she learned
3 that he had been tortured, further undermined her credibility. It also reasonably
4 relied on her vague responses to the questions posed at the hearing. Most
5 dramatically, Kalluci asserted in her application that she and her family were
6 mistreated on two specific dates, but could not provide any description of how she
7 was harmed when asked about them. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140,
8 152 (2d Cir. 2003) (“Where an applicant gives very spare testimony . . . the IJ . . .
9 may fairly wonder whether the testimony is fabricated. . . . [and] may wish to
10 probe for incidental details.”), overruled in part on other grounds by Shi Liang Lin v.
11 U.S. Dep’t of Just., 494 F.3d 296 (2d Cir. 2007). The multiple inconsistencies and
12 vague responses about alleged incidents of persecution provide substantial
13 evidence for the adverse-credibility determination. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; see also Likai Gao v. Barr, 968 F.3d
15 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien
16 from showing that an IJ was compelled to find him credible. Multiple
17 inconsistencies would so preclude even more forcefully.”).
18 We have considered all of Petitioners’ remaining arguments and find them
19 to be without merit. For the foregoing reasons, the petition for review is
6 1 DENIED. All pending motions and applications are DENIED and stays
2 VACATED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court