20

- 1728 Kumal v. Garland BIA Zagzoug , IJ A 208 418 009 

### 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 Thu**  **rgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on th e 21**  **st da**  **y of July**  **, two thousand twenty** 
**- two** 

**.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **RAYMOND J. LOHIER, JR.,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **KUMAR KUMAL ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 1728**  16 **NAC** 17 **MERRICK B. GARLAND, UNITED**  18 **STATES ATTORNEY GENERAL**  **,** 19 **R espondent** 

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Khagendra Gharti

- Chhetry , Esq. , 23 New York , NY. 24 25 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 26 Attorney General; Sabatino F. Leo , 27 Assistant Director ; Jaclyn G. 282 Hagner , Attorney , Office of 1 Immigration Litigation , United 2 States Department of Justice, 3 Washington, DC. 4 5 U PON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED. 9

Petitioner Kum ar Kumal , a native and citizen of Nepal , 10

seeks review of a May 4, 2020 , decision of the BIA affirming 11

a May 3, 2018 , decision of an I mmigration Judge (“IJ”) d enying 12

Kumal’s application for asylum, withholding of removal , and 13
relief under the Convention Against Torture (“CAT”). In re 14

Kumar Kumal , No. A 208 418 009 (B.I.A. May 4, 2020 ), aff’g No. 15

A 208 418 009 (Immig. Ct. N.Y. City May 3 , 2018 ). We assume 16
the parties’ familiarity with the underlying facts and 17
procedural his tory. 18
Under the circumstances, we have consider ed both the IJ’s 19
and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland 20

Sec

. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 21

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

§ 1252(b)(4)(B) (“the administrative findings of fact are 23
conclusive unless any reasonable adjudicator would be 24
compelled to conclude to the contrary”) ; Hong Fei Gao v. 253 Sessions , 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 1
credibility determination under substantial evidence 2

standard)

. 3
“Considering the totality of the circumstances, and all 4
relevant factors, a trier of fact may base a credibility 5

determination on the demeanor, candor, or responsiveness of 6
the applicant or witness, the inherent plausibility of the 7
applicant’s or witness’s account, the consistency between the 8
applicant’s or witness’s written and oral statements . . . , 9
the internal consistency of each such statement , [and] t he 10
consistency of such statements with other evidence of record 11
. . . without regard to whether an inconsistency, inaccuracy, 12
or falsehood goes to the heart of the applicant’s claim.” 13

8 U.S.C. § 1158(b)(1)(B)(iii)

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

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

Gao , 891 F.3d at 76. 19
Substantial evidence supports the agency’s determination 20

that Kumal was not credible as to his claim that Maoists 21

attacked and threatene d him on account of his political 224 activities for the Nepali Congress Party

. The IJ reasonably 1

found Kumal’s testimony evasive and vague, noting that he 2
repeatedly claimed to have difficulty answering 3
straightforward questions on cross

- examination. See 4

8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 5
77, 81 n.1 (2d Cir. 2005) (recognizing that particular 6
deference is given to the trier of fact’s assessment of 7

demeanor)

. Those findings are supported by the record and 8
bolstered by the fact that Kumal’s vague testimony that he 9

knew his father belonged to the Nepali Congres s Party b ut did 10

not know anything about his political activities was 11

inconsistent with his mother’s letter and with his own 12

affidavit , in which he indicated he had attended party 13
meetings and assemblies with his father and that his father 14
influenced his po litical activities. See Li Hua Lin v. U.S. 15
Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) (“We can be 16

still more confident in our review of observations about an 17
applicant’s demeanor where, as here, they are supported by 18
specific examples of inconsiste nt testimony.”). Further, the 19
agency did not err in relying on Kumal’s vague testimony 20

because the IJ and attorneys probed for details regarding the 21

claim s throughout his hearing. See Jin Shui Qiu v. Ashcroft , 225 329 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives 1
very spare testimony, . . . the IJ . . . may fairly wonder 2
whether the testimony is fabricated . . . [and] may wish to 3
probe for incidental details

. . . . ”), overruled in part on 4
other grounds by Shi Liang Lin v. U.S. Dep’t of Justice , 494 5
F.3d 296, 305 (2d Cir. 2007). 6

The agency also reasonably relied on the inconsistency 7

in Kumal’s statements regarding his own political activities, 8
his implausible testimony regarding his second encounter with 9
Maoists, and his failure to ini tially reveal a Maoist attack 10

on his mother and sister. See 8 U.S.C. § 1158(b)(1)(B)(iii) ; 11

Siewe v. Gonzales , 480 F.3d 160, 169 (2d Cir. 2007) 12
(recognizing that adverse credibility determination may be 13
based on inherent implausibility if the finding “is tethered 14
to the evidentiary record” or “record facts . . . viewed in 15
the light of common sense and ordinary experience”)

. Kumal 16

did not provide compelling expla nations for these 17
discrepancies

. See Majidi , 430 F.3d at 80 (“A petitioner 18
must do more than offer a plausible explanation for his 19

inconsistent statements to secure relief; he must demonstrate 20

that a reasonable fact

- finder would be compelled to credit 21
his testimony.” (quotation marks omitted)). 226 Given the dem eanor, inconsistency , and implausibility 1
findings , the agency’s adverse credibility determination is 2
supported by substantial evidence. See 8 U.S.C. 3

§ 1158(b)(1)(B)(iii). That determination was dispositive of 4
asylum, withholding of removal, and CAT relie f because all 5
three claims were based on the same factual predicate

. S ee 6

Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 2006)

. 7

Because “[a] s a general rule courts and agencies are not 8
required to make findings on issues the decision of which is 9
unnecessary to the results they reach ,” INS v. Bagamasbad , 10
429 U.S. 24, 25 (1976) , we do not reach the agency’s 11

alternative findings regarding corroboration and burden of 12
proof. 13
For the foregoing reasons, the petition for review is 14

DENIED . All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’Hagan Wolfe , 18 Clerk of Court 19 20