     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




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