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.,

(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,

(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

(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,

(2d Cir. 2008); accord Hong Fei

19 Gao,

.

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

(b)(1)(B)(iii); Majidi v. Gonzales,

, 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,

(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

(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

, 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

(b)(1)(B)(iii);

12 Siewe v. Gonzales,

(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,

(“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,

, 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

(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

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