     15-890
     Kola v. Lynch
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A200 172 957
                     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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   8th day of June, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GENTJAN KOLA, AKA THEODHOROS
14   STENIDIS
15            Petitioner,
16            v.                                                     15-890
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gentjan Kola, pro se, Warren,
24                                       Michigan.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Jesse M.
28                                       Bless, Senior Litigation Counsel;
29                                       Neelam Ihsanullah, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       Washington, D.C.
1          UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5          Petitioner Gentjan Kola, a native and citizen of Albania,

6    seeks review of a March 10, 2015, decision of the BIA affirming

7    a March 7, 2013, decision of an Immigration Judge (“IJ”) denying

8    Kola’s application for asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).         In re

10   Gentjan Kola, No. A200 172 957 (B.I.A. Mar. 10, 2015), aff’g

11   No. A200 172 957 (Immig. Ct. N.Y. City Mar. 7, 2013).     We assume

12   the   parties’   familiarity   with   the   underlying   facts   and

13   procedural history in this case.

14         Under the circumstances of this case, we have reviewed “the

15   IJ’s decision, including the portions not explicitly discussed

16   by the BIA.”     Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

17   Cir. 2005).      The applicable standards of review are well

18   established.     8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

19   562 F.3d 510, 513 (2d Cir. 2009).

20         For asylum applications, like Kola’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

                                      2
1    circumstances,”   base   a   credibility    finding   on   an   asylum

2    applicant’s   “demeanor,     candor,   or   responsiveness,”       the

3    plausibility of his account, and inconsistencies between the

4    applicant’s statements and other evidence, “without regard to

5    whether” they go “to the heart of the applicant’s claim.”            8

6    U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d

7    162, 163-64 (2d Cir. 2008).          “We defer . . . to an IJ’s

8    credibility determination unless, from the totality of the

9    circumstances, it is plain that no reasonable fact-finder could

10   make such an adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d

11   at 167.   Here, the IJ reasonably relied on Kola’s demeanor, his

12   lack of corroborating evidence, and inconsistencies among his

13   testimony, asylum application, and documentary evidence in

14   reaching the adverse credibility determination.

15       “[D]emeanor is paradigmatically the sort of evidence that

16   a fact-finder is best positioned to evaluate.”        Li Zu Guan v.

17   INS, 453 F.3d 129, 140 (2d Cir. 2006).       Accordingly, we grant

18   “particular deference” in applying the substantial evidence

19   standard to credibility findings based on demeanor.             Shu Wen

20   Sun v. BIA, 510 F.3d 377, 380-81 (2d Cir. 2007).            The IJ’s

21   demeanor findings, that Kola struggled to answer questions

                                      3
1    regarding dates, offered vague testimony, and exaggerated his

2    testimony on at least one occasion, are supported by the record.

3         The    demeanor      finding    and   the   adverse    credibility

4    determination as a whole are further supported by specific

5    inconsistencies in the record identified the by IJ.          See Li Hua

6    Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)

7    (“We can be still more confident in our review of observations

8    about an applicant’s demeanor where, as here, they are supported

9    by   specific     examples   of   inconsistent   testimony.”).        For

10   instance, Kola was inconsistent as to medical care following

11   an alleged January 2011 arrest.          He testified that when he was

12   released from police custody, a doctor named Dava Ejaku visited

13   his house several times; Kola denied going to a hospital.

14   However, he submitted a medical report stating that he was

15   treated in a medical institution by a Dr. Ela Reci.            Kola was

16   unable     to   provide   any     plausible   explanation    for    these

17   discrepancies, other than stating that he had made a mistake,

18   did not understand the document, and could acquire a document

19   from Dr. Ejaku.

20        Kola       also   omitted    material    information    from     his

21   application.       He testified that he was fined and beaten for

                                          4
1    being an election monitor, specifically that opposition members

2    came to his house, demanded payment, and beat him.           His asylum

3    application omits any mention of a beating.               This omission

4    strongly   supports    the   adverse    credibility       determination

5    because it relates to “an example of the very persecution from

6    which [Kola] sought asylum.”      Xian Tuan Ye v. Dep’t of Homeland

7    Sec., 446 F.3d 289, 295 (2d Cir. 2006) (internal quotation marks

8    omitted); see also Xiu Xia Lin, 534 F.3d at 166 n.3 (“An

9    inconsistency    and   an    omission   are   .   .   .    functionally

10   equivalent.”).    While the IJ was mistaken in finding that Kola

11   had backtracked from this testimony (the IJ relied on testimony

12   regarding the previous day’s activities), this limited error

13   does not require a remand: the other findings, particularly the

14   inconsistencies regarding the beating and medical care, make

15   clear that the result would not have changed absent the error.

16   See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401-02

17   (2d Cir. 2005) (holding that remand is unnecessary when it is

18   “clear that the same decision would have been reached in the

19   absence of the errors”).

20       As the IJ found, Kola’s lack of corroborating evidence

21   further undermined his credibility.      See Biao Yang v. Gonzales,

                                       5
1    496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

2    corroborate his or her testimony may bear on credibility,

3    because the absence of corroboration in general makes an

4    applicant unable to rehabilitate testimony that has already

5    been called into question.”).      Kola failed to provide evidence

6    that his car was bombed despite asserting that he had reported

7    the bombing to authorities and had evidence of it.         Also, Kola

8    failed to provide a statement from his brother, who allegedly

9    suffered the same persecution Kola did.         And, the IJ reasonably

10   gave limited weight to a letter from Kola’s father because it

11   was    from   an     interested       witness     not    subject   to

12   cross-examination.    See Xiao Ji Chen v. U.S. Dep’t of Justice,

13   471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight

14   accorded to evidence lies largely within the discretion of the

15   agency); Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)

16   (deferring to the agency’s decision to afford little weight to

17   a relative’s letter).

18         Given the inconsistencies, demeanor finding, and lack of

19   corroboration, substantial evidence supports the agency’s

20   adverse credibility determination, which is dispositive of all

21   of Kola’s claims for relief.      See Xiu Xia Lin, 534 F.3d at 167;

                                       6
1    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

2    Moreover, because Kola did not challenge the IJ’s denial of CAT

3    relief before the BIA or in his brief, the claim is also

4    unexhausted and waived.   See Lin Zhong v. U.S. Dep’t of Justice,

5    480 F.3d 104, 107 n.1 (2d Cir. 2007).   Finally, Kola’s argument

6    that the IJ was prejudiced is not supported by the record.    An

7    adverse ruling, on its own, does not constitute judicial bias.

8    See Liteky v. United States, 510 U.S. 540, 555 (1994).

9        For the foregoing reasons, the petition for review is

10   DENIED.

11                                FOR THE COURT:
12                                Catherine O=Hagan Wolfe, Clerk




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