     18-791
     Kalala v. Barr
                                                                           BIA
                                                                        Hom, IJ
                                                                   A205 826 228
                           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 17th day of March, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, Jr.,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   NAOMI KALALA,
14            Petitioner,
15
16                    v.                                  18-791
17                                                        NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Thomas V. Massucci, New York, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
26                                    General; John S. Hogan, Assistant
27                                    Director; Lindsay Corliss, Trial
28                                    Attorney; Office of Immigration
1                              Litigation, United States
2                              Department of Justice, Washington,
3                              DC.

4        UPON DUE CONSIDERATION of this petition for review of a

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

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8        Petitioner Naomi Kalala, a native and citizen of the

9    Democratic Republic of the Congo, seeks review of a February

10   26, 2018 decision of the BIA affirming an April 20, 2017

11   decision of an Immigration Judge (“IJ”) denying Kalala’s

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).     In re Naomi

14   Kalala, No. A 205 826 228 (B.I.A. Feb. 26, 2018), aff’g No. A

15   205 826 228 (Immig. Ct. N.Y.C.Apr. 20, 2017).    We assume the

16   parties’ familiarity with the underlying facts and procedural

17   history.

18       Under the circumstances of this case, we review both the

19   IJ’s and BIA’s decisions “for the sake of completeness.”   See

20   Wangchuck v. Dep’t of Homeland Sec., Immigration & Customs

21   Enf’t, 448 F.3d 524, 528 (2d Cir. 2006).        The applicable

22   standards of review are well established.        See 8 U.S.C.

23   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

24   (2d Cir. 2018) (reviewing adverse credibility determination

                                   2
 1   under a substantial evidence standard).   The governing REAL

 2   ID Act credibility standard provides as follows:

 3       Considering the totality of the circumstances, and
 4       all relevant factors, a trier of fact may base a
 5       credibility determination on . . . the consistency
 6       between the applicant’s or witness’s written and
 7       oral statements . . . , the internal consistency of
 8       each such statement, the consistency of such
 9       statements with other evidence of record . . . , and
10       any inaccuracies or falsehoods in such statements,
11       without   regard  to   whether   an  inconsistency,
12       inaccuracy, or falsehood goes to the heart of the
13       applicant’s claim, or any other relevant factor.
14
15   8 U.S.C. § 1158(b)(1)(B)(iii).    We “defer . . . to an IJ’s

16   credibility determination unless, from the totality of the

17   circumstances, it is plain that no reasonable fact-finder

18   could make such an adverse credibility ruling.”    Xiu Xia Lin

19   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

20   Gao, 891 F.3d at 76.     Substantial evidence supports the

21   agency’s adverse credibility determination.

22       The agency was entitled to rely on the asylum interview

23   record in assessing Kalala’s credibility.     The agency may

24   rely on the record of an asylum interview if the record

25   contains a “meaningful, clear, and reliable summary of the

26   statements made by [the applicant] at the interview.”   Diallo

27   v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006) (citation and

28   internal quotation marks omitted).   Asylum interviews do not

29   require the same special scrutiny as airport or credible fear
                                   3
1    interviews because they “take place after the alien has

2    arrived in the United States, has taken the time to submit a

3    formal asylum application, and has had the opportunity to

4    gather his or her thoughts, to prepare for the interview, and

5    to obtain counsel.”          Id.   In this case, the record contains

6    the   asylum   officer’s       notes    reflecting        the   questions   and

7    Kalala’s answers, and a typed assessment of Kalala’s claim.

8    Kalala argues that the non-responsive and conflicting answers

9    in the asylum interview record are evidence that the record

10   was not reliable.        But a factfinder could conclude that the

11   conflicting answers were the result of Kalala’s fabrication,

12   not her lack of English fluency.             When competing inferences

13   can be drawn from the evidence, we defer to the IJ.                         See

14   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).

15         The   agency     also     did    not   err     in     relying   on    the

16   inconsistency        among    Kalala’s     asylum    application,      asylum

17   interview,     and    testimony       regarding     whether     she   had   two

18   children.      Kalala listed her nieces as her children on her

19   asylum application and testified that she did so because she

20   was taking care of them and they were staying with her.                     The

21   IJ was not required to accept this explanation, particularly

22   as Kalala testified that she was not taking care of them at

23   the time she filed her asylum application.                      See Majidi v.
                                            4
1    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

2    do    more   than   offer    a   plausible    explanation   for   his

3    inconsistent statements to secure relief; he must demonstrate

4    that a reasonable fact-finder would be compelled to credit

5    his   testimony.”   (internal     quotation   marks   and   citations

6    omitted)).

7          The record supports the agency’s reliance on additional

8    inconsistencies.     Kalala’s testimony and statements at the

9    asylum interview were inconsistent regarding the location of

10   the   children.     The     asylum   interview   record   and   asylum

11   application were inconsistent regarding where she was raped.

12   And her testimony and documentary evidence were inconsistent

13   regarding whether she had a miscarriage following the rape.

14         The agency also did not err in determining that Kalala’s

15   use of a false passport to obtain a U.S. visa in South Africa

16   undermined her credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii)

17   (explaining that IJ may rely on falsehoods in any statement

18   “without regard to whether . . . [it] goes to the heart of

19   the applicant’s claim”).         Making false statements to flee

20   persecution is consistent with the pursuit of asylum, and it

21   is “unreasonable” to “penalize an applicant for lying to

22   escape a country where he or she faces persecution.”               Rui

23   Ying Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir. 2006).           But
                                          5
1    here the agency reasonably determined that Kalala was not

2    directly fleeing persecution at the time that she used the

3    false passport.   See Mei Fun Wong v. Holder, 633 F.3d 64, 72

4    (2d Cir. 2011) (“[P]ersecution is an extreme concept that

5    does not include every sort of treatment our society regards

6    as offensive.” (internal quotation marks omitted)).

7        Finally, two physician affidavits provided by Kalala do

8    not compel the conclusion that Kalala was credible.   See Xiu

9    Xia Lin, 534 F.3d at 167 (“We defer . . . to an IJ’s

10   credibility determination unless . . . it is plain that no

11   reasonable fact-finder could make such an adverse credibility

12   ruling.”); see also Hong Fei Gao, 891 F.3d at 79 (“review of

13   an agency’s adverse credibility determination is conducted on

14   the record as a whole” (internal quotation marks omitted)).

15   While a physician’s evaluation provided evidence that Kalala

16   was harmed, it did not corroborate that she was harmed on

17   account of her husband’s political activities.     Similarly,

18   an affidavit signed by a psychiatrist would not necessarily

19   compel a reasonable factfinder to find Kalala credible.   See

20   Xiu Xia Lin, 534 F.3d at 167; cf. Hong Fei Gao, 891 F.3d at

21   81 (determining that omissions were entitled to little weight

22   in part because “when considering the record as a whole, there

23   was corroborating evidence of petitioners’ claims” of past
                                   6
1    persecution by authorities (internal quotation marks and

2    citation omitted)).

3        Given     the    inconsistencies     among     Kalala’s   testimony,

4    application, asylum interview record, and medical documents,

5    substantial     evidence     supports        the   adverse    credibility

6    determination.       See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

7    Lin, 534 F.3d at 167.         Because all of Kalala’s claims were

8    based on the same factual predicate, the adverse credibility

9    determination       is   dispositive    of    asylum,   withholding   of

10   removal, and CAT relief.       See Paul v. Gonzales, 444 F.3d 148,

11   156–57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.   All pending motions and applications are DENIED and

14   stays VACATED.

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




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