2 1

- 6 131 Kazol v. Garland BIA Douchy , IJ A 20 6 913 600 

### 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**  1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **2 n**  **d d**  **a y of**  **F e**  **b r**  **u a**  **r y**  **, two thousand**  **twenty**

  4 ** t** **hree**

**.** 5 6 **PRESENT:** 7 **JOSÉ A. CABRANES ,**  8 **M ICHAEL H. PARK**  **,** 9 **ALISON J. NATHAN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **SANAULLAH KAZOL ,**  14 **Petitioner ,**  15 16
**v. 2**  **1**

**- 6131**  17 **NAC** 18 **MERRICK B. GARLAND, UNITED**  19 **STATES ATTORNEY GENERAL**  **,** 20 **R espondent** 

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Thomas V . Massucci , Esq., New 24 York , N Y

. 25 26 **FOR RESPONDENT:** Brian M. Boynton , Acting 27 Assistant Attorney General; 282 Sabatino F. Leo , Assistant 1 Director ; Katie E. Rourke , Trial 2 Attorney , Office of Immigration 3 Litigation , United States 4 Department of Justice, 5 Washington, DC. 6 7 U PON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED. 11

Petitioner Sanaullah Kazol , a native and citizen of 12
Bangladesh , seeks review of a February 26 , 202 1 decision of 13
the BIA affirming a n October 2 , 2018 decision of an 14

I mmigration Judge (“IJ”) d enying his application for asylum, 15
withholding of removal , and relief under the Convention 16
Against Torture (“CAT”). In re Sanaullah Kazol , No. A 20 6 913 17

600 (B.I.A. Feb

. 26 , 202 1 ), aff’g No. A 20 6 913 600 (Immig. 18

Ct. N.Y.C

. Oct

. 2 , 2018 ). We assume the parties’ familiarity 19

with the underlying facts and procedural his tory. 20

We have reviewed both the BIA’s and IJ’s opinions. See 21

Yun

- Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). 22

We review an adverse credibility determination “ under the 23

substantial evidence standard, ” Hong Fei Gao v. Sessions , 891 24
F.3d 67, 76 (2d Cir. 2018), and “the administrative findings 25
of fact are conclusive unless any reasonable adjudicator 263 would be compelled to conclude to the contrary,” 8 U.S.C. 1

§ 1252(b)(4)(B). 2
“Considering the totality of the circumstances, and all 3
relevant factors, a trier of fact may base a credibility 4
determination on the demeanor, candor, or responsiveness of 5
the applicant or witness, the inherent plausibility of the 6
applicant’s or witnes s’s account, the consistency between the 7
applicant’s or witness’s written and oral statements

. . . , 8
the internal consistency of each such statement, [and] the 9
consistency of such statements with other evidence of record 10

. . . , without regard to whether an inconsistency, 11
inaccuracy, or falsehood goes to the heart of the applicant’s 12
claim, or any other relevant factor.” Id. 13

§ 1158(b)(1)(B)(iii). “ We defer .

. . to an IJ’s credibility 14
determination unless, from the totality of the circumstances, 15
it is plain that no reasonable fact

- finder could make such an 16
adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 534 17
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao , 891 F.3d 18

at 76. Kazol alleged that members of the Awami League came 19
to his shop and assaulted him on account of his support for 20

the Bangladesh National Party (“BNP”) and beat and killed a 214 friend who was with him

. Substantial evidence supports the 1

agenc y’s adverse credibility determination. 2

The only exhausted issue , and thus the only issue 3
properly before us , is Kazol’s challenge to the inconsistency 4
as to what happened to the customers in his store when the 5

members of the Awami League arrived. Foster v. INS , 376 F.3d 6

75, 78 (2d Cir. 2004) (“ To preserve a claim, we require 7
petitioner to raise issues to the BIA in order to preserve 8
them for judicial review.” (quotation marks and brackets 9

omitted)) ; accord Quituizaca v. Garland , 5 2 F.4th 103, 116 10

(2d Cir. 2022) . However, even if Kazol had exhausted all his 11

arguments , substantial evidence supports the adverse 12
credibility determination. 13
The IJ reasonably relied on Kazol’s demeanor, noting that 14
his testimony was frequently non

- responsive and vague, and 15
that many of his answers were confusing. See 8 U.S.C. 16

§ 1158(b)(1)(B)(iii). We give “ particular weight” to this 17
finding because “the IJ has the unique advantage

. . . of 18

ha ving heard directly from the applicant.” Majidi v. 19

Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005) (quotation marks 20

omitted)

. The IJ was not compelled to assume that Kazol’s 21
lack of responsiveness was attributable to something other 225 than a lack of truthfulness, particularly as Kazol confirmed 1
that he understood the questions. See Gao v. Barr , 968 F.3d 2

137, 149 (2d Cir. 2020) (noting that an IJ’s observation “ that 3
[the petiti oner] was sometimes ‘ non - responsive ’ to questions 4

. . . can raise concerns that a witness's testimony is based 5
more on a script than on actual experience ”). 6
The agency also reasonably relied on inconsistencies in 7

Kazol’s statement s and between his statements and supporting 8

documents. See 8 U.S.C. § 1158(b)(1)(B)(iii). The record 9

reflects inconsistencies as to (1) what happened to the 10
customers in his store when the Awami League attacked ; (2) 11

the medical attention Kazol received fo r his injuries 12
following the alleged attack ; and (3) what happened to the 13
body of his friend whom he alleged was killed by the Awami 14

League. T he IJ was not compelled to credit his explanations 15
for these inconsistencies, s ee Majidi , 430 F.3d at 80 (“A 16
petitioner must do more than offer a plausible explanation 17

for his inconsistent statements to secure relief; he must 18

demonstrate that a reasonable fact

- finder would be compelled 19
to credit his testimony.” (quotation marks omitted)) , and the 20

agency may rely on minor or tangential inconsistencies so 21
long as the totality of the circumstances supports the adverse 226 credibility determination, Xiu Xia Lin , 534 F.3d at 167 (“Even 1
where an IJ relies on discrepancies or lacunae that, if taken 2
separately, concern m atters collateral or ancillary to the 3
claim, the cumulative effect may nevertheless be deemed 4
consequential by the fact

- finder.” (quotation marks and 5

brackets omitted)). 6
The agency also reasonably relied on a lack of reliable 7

corroboration

. S ee Biao Yang v. Gonzales , 496 F.3d 268, 273 8

(2d Cir. 2007) (“A n applicant’s failure to corroborate his or 9
her testimony may bear on credibility, because the absence of 10
corroboration in general makes an applicant unable to 11
rehabilitate testimony that has already be en called into 12
question.” ). Kazol did not provide letters from the doctor 13
who treated him initially or from the family members or 14
friends who allegedly brought him to the hospital. And the 15
corroboration he did provide

— an article and a letter from 16

another doctor

— was inconsistent with his testimony. 17
In sum, the IJ’s demeanor finding, the inconsistencies , 18

and the lack of reliable corroboration constitute substantial 19
evidence for the adverse credibility determination. See 8 20

U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 21
The adverse credibility determination is dispositive of 227 asylum, withholding of removal and CAT relief because all 1

three forms of relief were based on the same factual 2
predicate. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 3

Cir. 2006). 4
For the foregoing reasons, the petition for review is 5

DENIED . All pending motions and appli cations are DENIED and 6

stays VACATED. 7

FOR THE COURT: 8 Catherine O ’Hagan Wolfe , 9 Clerk of Court 10