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.**  **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 23 rd**  **day of May, two thousand eighteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **GUIDO CALABRESI,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XHULJAN KALAVACI,** 13 14 Petitioner **,** 15 16 **v. 16-4114** 17 **NAC** 18 19 **JEFFERSON B. SESSIONS III,** 20 **UNITED STATES ATTORNEY GENERAL,** 21 22 Respondent **.** 23

**_____________________________________** 24 25 **FOR PETITIONER:** Adrian Spirollari, Brooklyn, NY. 26 27 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 282 Attorney General; Keith I. 1 McManus, Assistant Director; 2 Scott M. Marconda, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Xhuljan Kalavaci, a native and citizen of 13 Albania, seeks review of a November 10, 2016, decision of the 14 BIA affirming a June 1, 2016, decision of an Immigration Judge 15 (“IJ”) denying Kalavaci’s application for asylum, withholding 16 of removal, and relief under the Convention Against Torture 17 (“CAT”). In re Xhuljan Kalavaci, No. A206 434 776 (B.I.A. 18 Nov. 10, 2016), aff’g No. A206 434 776 (Immig. Ct. N.Y. City 19 June 1, 2016). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 Under the circumstances of this case, we review both the 22 IJ’s and the BIA’s decisions “for the sake of completeness.” 23 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d 24 Cir. 2006). The applicable standards of review are well 25 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 263 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam). 1 The governing REAL ID Act credibility standard provides 2 that the agency must “[c]onsider[] the totality of the 3 circumstances,” and may base a credibility finding on an 4 applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of his account, and inconsistencies or omissions 6 in his or his witness’s statements, “without regard to 7 whether” they go “to the heart of the applicant’s claim.” 8 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin , 534 F.3d at 9 163-64, 166-67. “A petitioner must do more than offer a 10 plausible explanation for his inconsistent statements to 11 secure relief; he must demonstrate that a reasonable fact12 finder would be compelled to credit his testimony.” Majidi 13 v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (internal 14 quotation marks omitted). “We defer . . . to an IJ’s 15 credibility determination unless . . . it is plain that no 16 reasonable fact-finder could make such an adverse credibility 17 ruling.” Xiu Xia Lin , 534 F.3d at 167. For the reasons that 18 follow, we conclude that the agency did not err in finding 19 Kalavaci not credible. 20 First, the agency reasonably relied on the inconsistency 21 between Kalavaci’s testimony that his family members did not 224 work for a political candidate and the candidate’s letter 1 that members of Kalavaci’s family were on his staff. See id

. 2 at 166-67. The BIA was not required to credit Kalavaci’s 3 explanation that being on staff and working for a candidate 4 are not the same thing. See Majidi , 430 F.3d at 80. Nor do 5 Kalavaci’s current explanations compel a contrary conclusion. 6 His explanations that the candidate may have meant extended 7 family members or family members who worked for the candidate 8 when Kalavaci was a child are speculative and do not resolve 9 the inconsistency. Id

. 10 Second, the agency reasonably relied on Kalavaci’s 11 inconsistent testimony about whether his father was both an 12 organizer during elections and a member of the voting 13 commission, as well as his father’s omission of the alleged 14 membership on the commission and threats that Kalavaci 15 received. See Xiu Xia Lin , 534 F.3d at 166-67. The agency 16 was not required to accept Kalavaci’s explanation that an 17 organizer and a member are the same. See Majidi , 430 F.3d at 18 80. Nor would the agency have been compelled to accept 19 Kalavaci’s new, and unexh austed, explanations for his 20 father’s omissions. He argues that his father’s general 21 mention of a threat from an activist was sufficient to 225 corroborate multiple threatening calls and that his father 1 may have served on the voting commission when Kalavaci was a 2 child. The first explanation, although plausible, is not 3 compelling, and the second is again speculative. Id. ; see 4 Siewe v. Gonzales , 480 F.3d 160, 167-68 (2d Cir. 2007) (“Where 5 there are two permissible views of the evidence, the 6 factfinder’s choice between them cannot be clearly 7 erroneous. . . . [R]ecord support for a contrary inference— 8 even one more plausible or more natural—does not suggest 9 error.” (internal quotation marks omitted)). 10 Finally, the adverse credibility determination is 11 further bolstered by the IJ’s observations of Kalavaci’s 12 demeanor and his lack of reliable corroboration. “[D]emeanor 13 is paradigmatically the sort of evidence that a fact-finder 14 is best positioned to evaluate,” Li Zu Guan v. INS , 453 F.3d 15 129, 140 (2d Cir. 2006), and “[w]e give particular deference 16 to credibility determinations that are based on the 17 adjudicator’s observation of the applicant’s demeanor,” Jin 18 Chen v. U.S. Dep’t of Justice , 426 F.3d 104, 113 (2d Cir. 19 2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice , 471 20 F.3d 315, 342 (2d Cir. 2006) (observing that the weight 21 accorded to an applicant’s “evidence lie[s] largely within 226 the discretion of the IJ.” (internal quotation marks 1 omitted)); Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2 2007) (per curiam)(“An applicant’s failure to corroborate his 3 or her testimony may bear on cr edibility, because the absence 4 of corroboration in general makes an applicant unable to 5 rehabilitate testimony that has already been called into 6 question.”). 7 Given the foregoing f indings, the adverse credibility 8 determination is supported by the “totality of the 9 circumstances.” Xiu Xia Lin , 534 F.3d at 167. The adverse 10 credibility determination is therefore dispositive of asylum, 11 withholding of removal, and CAT relief because all three 12 claims are based on the same factual predicate. See Paul v. 13 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 14 For the foregoing reasons, the petition for review is 15

DENIED. 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19