Filed: May 23, 2018
Latest Update: Mar. 03, 2020
Summary: 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 T
Summary: 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 TH..
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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., 448 F.3d 524, 528 (2d
25 Cir. 2006). The applicable standards of review are well
26 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2
1 Mukasey, 534 F.3d 162, 165-66 (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
9 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin, 534 F.3d at
10 163-64, 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,
430 F.3d 77, 80 (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, 534 F.3d at 167. 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 id.
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, 430 F.3d at 80. 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.
Id.
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, 534 F.3d at 166-67. The agency
17 was not required to accept Kalavaci’s explanation that an
18 organizer and a member are the same. See
Majidi, 430 F.3d at
19 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, 480 F.3d 160, 167-68 (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,
453 F.3d
16 129, 140 (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,
426 F.3d 104, 113 (2d Cir.
20 2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471
21 F.3d 315, 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, 496 F.3d 268, 273 (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, 534 F.3d at 167. 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,
444 F.3d 148, 156-57 (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
6
