23-7851 Kalombo v. Bondi BIA Hochul, IJ A206 060 646
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 22nd day of December, two thousand 4 twenty-five. 5 6 PRESENT: 7 DENNY CHIN, 8 RAYMOND J. LOHIER, JR., 9 ALISON J. NATHAN, 10 Circuit Judges. 11 _____________________________________ 12 13 EMANUEL KASHAMA KALOMBO, 14 Petitioner, 15 16 v. 23-7851 17 NAC 18 PAMELA BONDI, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Anne E. Doebler, Esq., Buffalo, NY. 24 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Anthony C. Payne, 3 Assistant Director; Raya Jarawan, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, 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 Emanuel Kashama Kalombo, a native and citizen of Angola, seeks
11 review of an October 25, 2023, decision of the BIA affirming a July 18, 2019,
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Kalombo, No. A 206 060 646 (B.I.A. Oct. 25, 2023), aff’g No. A 206
15 060 646 (Immig. Ct. Buffalo July 18, 2019). We assume the parties’ familiarity with
16 the underlying facts and procedural history.
17 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review de novo questions
19 of law and the application of law to fact” and “[w]e review the agency’s factual
20 findings, including adverse credibility findings, under the substantial evidence
21 standard[.]” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he 2 1 administrative findings of fact are conclusive unless any reasonable adjudicator
2 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
3 “Considering the totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . . the inherent plausibility of
5 the applicant’s or witness’s account, the consistency between the applicant’s or
6 witness’s written and oral statements (whenever made and whether or not under
7 oath, and considering the circumstances under which the statements were made),
8 the internal consistency of each such statement, the consistency of such statements
9 with other evidence of record . . . , and any inaccuracies or falsehoods in such
10 statements, without regard to whether an inconsistency, inaccuracy, or falsehood
11 goes to the heart of the applicant’s claim, or any other relevant factor.” Id.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
13 the totality of the circumstances, it is plain that no reasonable fact-finder could
14 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
15 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Here, substantial evidence
16 supports the agency’s adverse credibility determination.
17 First, as the Government asserts, Kalombo failed to exhaust challenges to
18 several grounds for that determination. See 8 U.S.C. § 1252(d)(1); Santos-Zacaria
3 1 v. Garland, 598 U.S. 411, 419, 423 (2023) (exhaustion pursuant to 8 U.S.C. §
2 1252(d)(1) is a “claim-processing rule” that is “subject to waiver and forfeiture”);
3 Ud Din v. Garland, 72 F.4th 411, 419 (2d Cir. 2023) (concluding that exhaustion is
4 “mandatory in the sense that a court must enforce the rule if a party properly raises
5 it”) (citation modified). Kalombo’s brief to the BIA did not mention—and the BIA
6 did not address—the IJ’s reliance on the asylum interviewer’s summary, an
7 inconsistency regarding Kalombo’s father’s nationality, the plausibility that
8 Kalombo obtained a party-affiliation identification card days after escaping police
9 custody, or the plausibility of obtaining a photograph with his wife and child
10 while hospitalized under police supervision. See Vera Punin v. Garland, 108 F.4th
11 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be closely
12 matched up with a specific argument made to the BIA, it has not been properly
13 exhausted and we cannot hear it.”). These unchallenged findings thus stand as
14 valid grounds for the adverse credibility determination. See Shunfu Li v. Mukasey,
15 529 F.3d 141, 146–47 (2d Cir. 2008) (noting that “waiver is significant” where
16 unchallenged “findings could, by themselves, support an adverse credibility
17 determination”). However, “where the BIA nonetheless addressed an issue not
4 1 raised on appeal,” we may review the BIA’s treatment of those issues. Ud Din, 72
2 F.4th at 420. We do so below.
3 In addition to the unchallenged findings, the IJ reasonably relied on
4 Kalombo’s inconsistent accounts of his treatment in prison and his injuries. 1 His
5 written statement reported that he was “waterboarded” twice during his week in
6 prison, and he initially reiterated that claim at his hearing, but he then added that
7 he was assaulted in a less severe fashion three times each day, and he later claimed
8 that he was waterboarded twice a day. These varying descriptions are significant
9 because they relate directly to the alleged persecution. See; Xian Tuan Ye v. Dep’t
10 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (finding that “material
11 inconsistency in an aspect of [petitioner’s] story that served as an example of the
12 very persecution from which he sought asylum . . . afforded substantial evidence
13 to support the adverse credibility finding”) (citation modified). Additionally,
14 Kalombo testified that the police broke his arm, but the medical report does not
15 identify that injury despite describing other injuries in detail. See id. The IJ was
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23-7851 Kalombo v. Bondi BIA Hochul, IJ A206 060 646
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 22nd day of December, two thousand 4 twenty-five. 5 6 PRESENT: 7 DENNY CHIN, 8 RAYMOND J. LOHIER, JR., 9 ALISON J. NATHAN, 10 Circuit Judges. 11 _____________________________________ 12 13 EMANUEL KASHAMA KALOMBO, 14 Petitioner, 15 16 v. 23-7851 17 NAC 18 PAMELA BONDI, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Anne E. Doebler, Esq., Buffalo, NY. 24 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Anthony C. Payne, 3 Assistant Director; Raya Jarawan, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, 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 Emanuel Kashama Kalombo, a native and citizen of Angola, seeks
11 review of an October 25, 2023, decision of the BIA affirming a July 18, 2019,
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Kalombo, No. A 206 060 646 (B.I.A. Oct. 25, 2023), aff’g No. A 206
15 060 646 (Immig. Ct. Buffalo July 18, 2019). We assume the parties’ familiarity with
16 the underlying facts and procedural history.
17 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review de novo questions
19 of law and the application of law to fact” and “[w]e review the agency’s factual
20 findings, including adverse credibility findings, under the substantial evidence
21 standard[.]” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he 2 1 administrative findings of fact are conclusive unless any reasonable adjudicator
2 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
3 “Considering the totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . . the inherent plausibility of
5 the applicant’s or witness’s account, the consistency between the applicant’s or
6 witness’s written and oral statements (whenever made and whether or not under
7 oath, and considering the circumstances under which the statements were made),
8 the internal consistency of each such statement, the consistency of such statements
9 with other evidence of record . . . , and any inaccuracies or falsehoods in such
10 statements, without regard to whether an inconsistency, inaccuracy, or falsehood
11 goes to the heart of the applicant’s claim, or any other relevant factor.” Id.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
13 the totality of the circumstances, it is plain that no reasonable fact-finder could
14 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
15 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Here, substantial evidence
16 supports the agency’s adverse credibility determination.
17 First, as the Government asserts, Kalombo failed to exhaust challenges to
18 several grounds for that determination. See 8 U.S.C. § 1252(d)(1); Santos-Zacaria
3 1 v. Garland, 598 U.S. 411, 419, 423 (2023) (exhaustion pursuant to 8 U.S.C. §
2 1252(d)(1) is a “claim-processing rule” that is “subject to waiver and forfeiture”);
3 Ud Din v. Garland, 72 F.4th 411, 419 (2d Cir. 2023) (concluding that exhaustion is
4 “mandatory in the sense that a court must enforce the rule if a party properly raises
5 it”) (citation modified). Kalombo’s brief to the BIA did not mention—and the BIA
6 did not address—the IJ’s reliance on the asylum interviewer’s summary, an
7 inconsistency regarding Kalombo’s father’s nationality, the plausibility that
8 Kalombo obtained a party-affiliation identification card days after escaping police
9 custody, or the plausibility of obtaining a photograph with his wife and child
10 while hospitalized under police supervision. See Vera Punin v. Garland, 108 F.4th
11 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be closely
12 matched up with a specific argument made to the BIA, it has not been properly
13 exhausted and we cannot hear it.”). These unchallenged findings thus stand as
14 valid grounds for the adverse credibility determination. See Shunfu Li v. Mukasey,
15 529 F.3d 141, 146–47 (2d Cir. 2008) (noting that “waiver is significant” where
16 unchallenged “findings could, by themselves, support an adverse credibility
17 determination”). However, “where the BIA nonetheless addressed an issue not
4 1 raised on appeal,” we may review the BIA’s treatment of those issues. Ud Din, 72
2 F.4th at 420. We do so below.
3 In addition to the unchallenged findings, the IJ reasonably relied on
4 Kalombo’s inconsistent accounts of his treatment in prison and his injuries. 1 His
5 written statement reported that he was “waterboarded” twice during his week in
6 prison, and he initially reiterated that claim at his hearing, but he then added that
7 he was assaulted in a less severe fashion three times each day, and he later claimed
8 that he was waterboarded twice a day. These varying descriptions are significant
9 because they relate directly to the alleged persecution. See; Xian Tuan Ye v. Dep’t
10 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (finding that “material
11 inconsistency in an aspect of [petitioner’s] story that served as an example of the
12 very persecution from which he sought asylum . . . afforded substantial evidence
13 to support the adverse credibility finding”) (citation modified). Additionally,
14 Kalombo testified that the police broke his arm, but the medical report does not
15 identify that injury despite describing other injuries in detail. See id. The IJ was
16 not compelled to accept Kalombo’s explanation—that he escaped from the
1 We do not rely on the IJ’s determination that supporting letters were inconsistent in stating that Kalombo feared return to the Democratic Republic of the Congo rather than to Angola because the letters stated that he feared both. 5 1 hospital before treatment was complete—because the medical report states that
2 the doctors completed a full physical examination before beginning treatment.
3 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
4 than offer a plausible explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be compelled to credit his
6 testimony.”) (citation modified).
7 The IJ also reasonably relied on Kalombo’s failure to corroborate his claims
8 that his father disappeared in the Democratic Republic of the Congo (“DRC”) and
9 that his cousin was arrested and killed (or made to disappear) by the police who
10 were looking for Kalombo after his escape. See Malets v. Garland, 66 F.4th 49, 57
11 (2d Cir. 2023) (“[A]n applicant’s failure to corroborate his or her testimony may
12 bear on credibility, because the absence of corroboration in general makes an
13 applicant unable to rehabilitate testimony that has already been called into
14 question.”) (citation modified). Statements from his family and friends in
15 support of his claim do not refer to these events. See Wei Sun v. Sessions, 883 F.3d
16 23, 31 (2d Cir. 2018) (explaining that an applicant “bears the ultimate burden of
17 introducing . . . evidence without prompting from the IJ”) (citation modified).
18 Additionally, the IJ reasonably gave diminished weight to a letter purportedly
6 1 from Kalombo’s father’s attorneys in the DRC given its last-minute submission.
2 See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
3 agency’s evaluation of the weight to be afforded an applicant’s documentary
4 evidence.”).
5 Finally, the IJ may have erred in finding it implausible that Kalombo could
6 have left Angola on an international flight while there was a warrant for his arrest.
7 Kalombo explained that he was assisted by a friend who worked at the airport,
8 and there was no evidence that security practices in Angolan airports were
9 coordinated to identify anyone with an outstanding warrant. See Cao He Lin v.
10 U.S. Dep’t of Just., 428 F.3d 391, 405 (2d Cir. 2005) (“[A]bsent record evidence of
11 practices in foreign countries, the IJ must not speculate as to the existence or nature
12 of such practices.”). Despite this speculation, the other findings, particularly the
13 inconsistencies about the alleged persecution and resulting injuries, provide
14 substantial evidence for the adverse credibility determination, such that “we can
15 state with confidence that IJ would adhere to h[er] decision were the petition
16 remanded.” Liangping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (citation
17 modified); Xiu Xia Lin, 534 F.3d at 167; see also Likai Gao v. Barr, 968 F.3d 137, 145
18 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from
7 1 showing that an IJ was compelled to find him credible. Multiple inconsistencies
2 would so preclude even more forcefully.”).
3 We have considered all remaining arguments and find no grounds that
4 would compel a finding of error in the adverse credibility determination. That
5 adverse credibility determination is dispositive of asylum, withholding, and CAT
6 relief because all three forms of relief were based on the same discredited facts.
7 See Hong Fei Gao, 891 F.3d at 76 (“Where the same factual predicate underlies a
8 petitioner’s claims for asylum, withholding of removal, and protection under the
9 CAT, an adverse credibility determination forecloses all three forms of relief.”).
10 For the foregoing reasons, the petition for review is DENIED. All pending
11 motions and applications are DENIED and stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court