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,

(2d Cir. 2005).

23 We review an adverse credibility determination “under the

24 substantial evidence standard,” Hong Fei Gao v. Sessions, 891

, 76 (2d Cir. 2018), and “the administrative findings

26 of fact are conclusive unless any reasonable adjudicator

2 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

(2d Cir. 2008); accord Hong Fei Gao,

. 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

3 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,

(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,

, 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,

, 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

4 1 than a lack of truthfulness, particularly as Kazol confirmed

2 that he understood the questions. See Gao v. Barr,

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

(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,

(“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

5 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,

, 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

(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

22 The adverse credibility determination is dispositive of

6 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,

, 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

7