16-4114 Kalavaci v. Sessions BIA Poczter, IJ A206 434 776

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 TO 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 23rd day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XHULJAN KALAVACI, 14 15 Petitioner, 16 17 v. 16-4114 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Adrian Spirollari, Brooklyn, NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 1 Attorney General; Keith I. 2 McManus, Assistant Director; 3 Scott M. Marconda, Trial 4 Attorney, Office of Immigration 5 Litigation, United States 6 Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioner Xhuljan Kalavaci, a native and citizen of

14 Albania, seeks review of a November 10, 2016, decision of the

15 BIA affirming a June 1, 2016, decision of an Immigration Judge

16 (“IJ”) denying Kalavaci’s application for asylum, withholding

17 of removal, and relief under the Convention Against Torture

18 (“CAT”). In re Xhuljan Kalavaci, No. A206 434 776 (B.I.A.

19 Nov. 10, 2016), aff’g No. A206 434 776 (Immig. Ct. N.Y. City

20 June 1, 2016). We assume the parties’ familiarity with the

21 underlying facts and procedural history in this case.

22 Under the circumstances of this case, we review both the

23 IJ’s and the BIA’s decisions “for the sake of completeness.”

24 Wangchuck v. Dep’t of Homeland Sec.,

(2d

25 Cir. 2006). The applicable standards of review are well

26 established. See

(b)(4)(B); Xiu Xia Lin v.

2 1 Mukasey,

(2d Cir. 2008)(per curiam).

2 The governing REAL ID Act credibility standard provides

3 that the agency must “[c]onsider[] the totality of the

4 circumstances,” and may base a credibility finding on an

5 applicant’s “demeanor, candor, or responsiveness,” the

6 plausibility of his account, and inconsistencies or omissions

7 in his or his witness’s statements, “without regard to

8 whether” they go “to the heart of the applicant’s claim.” 8

(b)(1)(B)(iii); see Xiu Xia Lin,

163-64, 166-67. “A petitioner must do more than offer a

11 plausible explanation for his inconsistent statements to

12 secure relief; he must demonstrate that a reasonable fact-

13 finder would be compelled to credit his testimony.” Majidi

14 v. Gonzales,

(2d Cir. 2005) (internal

15 quotation marks omitted). “We defer . . . to an IJ’s

16 credibility determination unless . . . it is plain that no

17 reasonable fact-finder could make such an adverse credibility

18 ruling.” Xiu Xia Lin,

. For the reasons that

19 follow, we conclude that the agency did not err in finding

20 Kalavaci not credible.

21 First, the agency reasonably relied on the inconsistency

22 between Kalavaci’s testimony that his family members did not

3 1 work for a political candidate and the candidate’s letter

2 that members of Kalavaci’s family were on his staff. See

3 at 166-67. The BIA was not required to credit Kalavaci’s

4 explanation that being on staff and working for a candidate

5 are not the same thing. See Majidi,

. Nor do

6 Kalavaci’s current explanations compel a contrary conclusion.

7 His explanations that the candidate may have meant extended

8 family members or family members who worked for the candidate

9 when Kalavaci was a child are speculative and do not resolve

10 the inconsistency.

11 Second, the agency reasonably relied on Kalavaci’s

12 inconsistent testimony about whether his father was both an

13 organizer during elections and a member of the voting

14 commission, as well as his father’s omission of the alleged

15 membership on the commission and threats that Kalavaci

16 received. See Xiu Xia Lin,

. The agency

17 was not required to accept Kalavaci’s explanation that an

18 organizer and a member are the same. See Majidi,

80. Nor would the agency have been compelled to accept

20 Kalavaci’s new, and unexhausted, explanations for his

21 father’s omissions. He argues that his father’s general

22 mention of a threat from an activist was sufficient to

4 1 corroborate multiple threatening calls and that his father

2 may have served on the voting commission when Kalavaci was a

3 child. The first explanation, although plausible, is not

4 compelling, and the second is again speculative. Id.; see

5 Siewe v. Gonzales,

(2d Cir. 2007) (“Where

6 there are two permissible views of the evidence, the

7 factfinder’s choice between them cannot be clearly

8 erroneous. . . . [R]ecord support for a contrary inference—

9 even one more plausible or more natural—does not suggest

10 error.” (internal quotation marks omitted)).

11 Finally, the adverse credibility determination is

12 further bolstered by the IJ’s observations of Kalavaci’s

13 demeanor and his lack of reliable corroboration. “[D]emeanor

14 is paradigmatically the sort of evidence that a fact-finder

15 is best positioned to evaluate,” Li Zu Guan v. INS,

(2d Cir. 2006), and “[w]e give particular deference

17 to credibility determinations that are based on the

18 adjudicator’s observation of the applicant’s demeanor,” Jin

19 Chen v. U.S. Dep’t of Justice,

(2d Cir.

20 2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

, 342 (2d Cir. 2006) (observing that the weight

22 accorded to an applicant’s “evidence lie[s] largely within

5 1 the discretion of the IJ.” (internal quotation marks

2 omitted)); Biao Yang v. Gonzales,

(2d Cir.

3 2007) (per curiam)(“An applicant’s failure to corroborate his

4 or her testimony may bear on credibility, because the absence

5 of corroboration in general makes an applicant unable to

6 rehabilitate testimony that has already been called into

7 question.”).

8 Given the foregoing findings, the adverse credibility

9 determination is supported by the “totality of the

10 circumstances.” Xiu Xia Lin,

. The adverse

11 credibility determination is therefore dispositive of asylum,

12 withholding of removal, and CAT relief because all three

13 claims are based on the same factual predicate. See Paul v.

14 Gonzales,

(2d Cir. 2006).

15 For the foregoing reasons, the petition for review is

16 DENIED.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

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