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
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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
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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
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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
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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
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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