22-6146 Nsimba Vakala v. Garland BIA Ruehle, IJ A206 654 053

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of January, two thousand twenty-four.

PRESENT: JON O. NEWMAN, MICHAEL H. PARK, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

ERIC NSIMBA VAKALA, Petitioner,

v. 22-6146 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Robert F. Graziano, Fairport, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Sabatino F. Leo, Assistant Director; Tatiana G. Pino, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Eric Nsimba Vakala, a native and citizen of the Democratic

Republic of the Congo (“DRC”), seeks review of a March 2, 2022, decision of the

BIA affirming a November 28, 2018, decision of an Immigration Judge (“IJ”)

denying his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Eric Nsimba Vakala, No. A206 654 053

(B.I.A. Mar. 2, 2022), aff’g No. A206 654 053 (Immig. Ct. Buffalo Nov. 28, 2018). We

assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified by the BIA. 1 See Xue Hong

Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005). We review the agency’s

1 The BIA set aside “the issue of whether [Nsimba Vakala] established his identity.” Certified Admin. Record at 3. Because it is not clear what the BIA meant by this statement, we have limited our review to inconsistencies that the BIA clearly affirmed. 2 factual findings, including an adverse credibility determination, “under the

substantial evidence standard,” and we review questions of law and the

application of law to fact de novo. Hong Fei Gao v. Sessions,

(2d Cir.

2018). “[T]he administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant . . . , the consistency between the applicant’s or

witness’s written and oral statements (whenever made and whether or not under

oath, and considering the circumstances under which the statements were made),

the internal consistency of each such statement, the consistency of such statements

with other evidence of record . . . , and any inaccuracies or falsehoods in such

statements, without regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim, or any other relevant factor.”

§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from

the totality of the circumstances, it is plain that no reasonable fact-finder could

make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

, 167

3 (2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence supports

the agency’s adverse credibility determination.

The IJ reasonably relied on Nsimba Vakala’s demeanor in making his

adverse credibility determination. See

(b)(1)(B)(iii). We give

“particular deference” to an IJ’s demeanor finding because the IJ is “in the best

position to evaluate whether apparent problems in the . . . testimony suggest a lack

of credibility or, rather, can be attributed to an innocent cause such as difficulty

understanding the question.” Li Hua Lin v. U.S. Dep’t of Just.,

(2d

Cir. 2006) (quotation marks omitted). And Nsimba Vakala has abandoned any

challenge to the demeanor finding by failing to challenge it in his brief. See Debique

v. Garland,

(2d Cir. 2023) (“We consider abandoned any claims

not adequately presented in an appellant’s brief, and an appellant’s failure to make

legal or factual arguments constitutes abandonment.” (quotation marks omitted)).

Moreover, the record reflects instances where Nsimba Vakala paused or was not

responsive. For example, when asked if he was aware that his Canadian asylum

application reported that he was unemployed from January 2010 to July 2014,

Nsimba Vakala’s answers were not responsive—he stated that he was in the

United States in 2013 and 2014 so “they” made a mistake, that he was instructed

4 to list five places he worked, and that “for the last year” he was not working

because he was in the United States. In addition, the IJ noted a long pause after he

asked Nsimba Vakala whether his alleged detention lasted two weeks as reported

in his written application, or two months as he testified to. Nsimba Vakala’s

responses—that he made a mistake when testifying, but then that he spent two

weeks in one prison and two months in another prison—did not resolve the

inconsistency.

Five inconsistencies that the BIA relied on add substantial support for the

adverse credibility determination. First, Nsimba Vakala’s testimony was

inconsistent with documentary evidence regarding the year he was born. His

passport and visa indicate his birth year as 1970, but his voter registration card

and school documents list his birth year as 1982. The IJ was not required to accept

his explanation that the errors were attributable to a friend who prepared the

document on his behalf because the application indicated that no one helped him

prepare it. See Majidi v. Gonzales,

(2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his inconsistent statements to secure

relief; he must demonstrate that a reasonable fact-finder would be compelled to

credit his testimony.” (quotation marks omitted)). Further, Nsimba Vakala told

5 Canadian authorities that his family and a different individual helped prepare the

application. The agency was not required to credit a letter purportedly from

Nsimba Vakala’s mother because despite being listed as a hearing witness, her

absence at the hearing was unexplained. See Likai Gao v. Barr,

(2d

Cir. 2020) (holding that an “IJ acted within her discretion in according [letters] little

weight because the declarants (particularly [the applicant]’s wife) were interested

parties and neither was available for cross-examination”).

Second, on his Canadian asylum application, Nsimba Vakala stated that he

had never applied for a Canadian visa; however, when confronted with contrary

evidence at the hearing, he admitted that he had lied on the Canadian asylum

application and had previously applied for and been denied a visa.

Third, Nsimba Vakala’s U.S. asylum application states that he began

working for a government agency in the DRC in 2005, but Canadian authorities

noted that Nsimba Vakala said he never worked for the government. Nsimba

Vakala then lied, stating that the Canadian authorities must have gotten it wrong;

he later admitted that he was afraid to tell Canadian authorities that he worked

for the DRC government. Contrary to Nsimba Vakala’s position here, the agency

may rely on the cumulative effect of even minor or tangential inconsistencies. See

6 Xiu Xia Lin,

(“[E]ven where an IJ relies on discrepancies or lacunae

that, if taken separately, concern matters collateral or ancillary to the claim, the

cumulative effect may nevertheless be deemed consequential by the fact-finder.”

(quotation marks omitted)). Moreover, the discrepancy about his employment

called into question whether he was employed by the DRC in 2012, and thus

undercut his testimony about the alleged persecution—specifically his claim that

he was employed by the government at the time of his arrest, detention, and

torture.

Fourth, Nsimba Vakala’s U.S. asylum application reported that he was

arrested twice in the DRC, but he testified that he was arrested only once. His

explanations that these were different steps and that he was detained in different

facilities was not compelling given that his application explicitly stated that he was

first arrested by police officers while leaving his office in August 2012, and then

was arrested for a second time at the end of September 2012. See Majidi,

.

Fifth, Nsimba Vakala’s testimony was internally inconsistent as to whether

he obtained a passport and visa before or after his detention in the DRC. He has

waived review of this finding by not challenging it, see Debique,

, and

7 his response confirming that his arrest occurred after he obtained the visa did not

explain the conflicting testimony.

Finally, the IJ also reasonably determined that Nsimba Vakala’s

corroborating evidence merited minimal weight and failed to rehabilitate his

claim. “An applicant’s failure to corroborate his or her testimony may bear on

credibility, because the absence of corroboration in general makes an applicant

unable to rehabilitate testimony that has already been called into question.” Biao

Yang v. Gonzales,

(2d Cir. 2007).

The agency reasonably gave little weight to Nsimba Vakala’s mother’s

affidavit because, as noted above, she was not available for cross-examination. See

Likai Gao,

; Y.C. v. Holder,

(2d Cir. 2013) (“We

generally defer to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”). Nsimba Vakala’s country conditions

evidence does not support his fear absent credible testimony about past events.

See Mu Xiang Lin v. U.S. Dep’t of Just.,

(2d Cir. 2005) (holding that

evidence that some prisoners in China are tortured was not sufficient to

“establish[] that someone in [petitioner’s] particular alleged circumstances is more

likely than not to be tortured”). And the agency acted within its discretion in

8 concluding that the expert testimony did not outweigh the effect of the

inconsistencies. See Y.C.,

.

Taken together, the demeanor finding, the multiple inconsistencies, and the

lack of corroboration to resolve the inconsistencies provide substantial evidence

for the adverse credibility determination. See

(b)(1)(B)(iii); Likai Gao,

n.8 (“[E]ven a single inconsistency might preclude an alien from

showing that an IJ was compelled to find him credible. Multiple inconsistencies

would so preclude even more forcefully.”); Xiu Xia Lin,

; Biao Yang,

. The adverse credibility determination is dispositive because all

three forms of relief were based on the same facts. See Hong Fei Gao,

.

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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

9