20-1728

Kumal v. Garland

BIA

Zagzoug, IJ

A208 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.

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 

New York, on the 21st 4 day of July, two thousand twenty-two.

5

6 PRESENT:

7 ROBERT D. SACK,

8 RAYMOND J. LOHIER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 KUMAR KUMAL,

14 Petitioner,

15

16 v. 20-1728

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,

24 New York, NY.

25

26 FOR RESPONDENT: Brian Boynton, Acting Assistant 

27 Attorney General; Sabatino F. Leo, 

28 Assistant Director; Jaclyn G. 
2

1 Hagner, Attorney, Office of 

2 Immigration Litigation, United 

3 States Department of Justice, 

4 Washington, DC.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

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

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

9 is DENIED.

10 Petitioner Kumar Kumal, a native and citizen of Nepal, 

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

12 a May 3, 2018, decision of an Immigration Judge (“IJ”) denying 

13 Kumal’s application for asylum, withholding of removal, and 

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

15 Kumar Kumal, No. A208 418 009 (B.I.A. May 4, 2020), aff’g No. 

16 A208 418 009 (Immig. Ct. N.Y. City May 3, 2018). We assume 

17 the parties’ familiarity with the underlying facts and 

18 procedural history.

19 Under the circumstances, we have considered both the IJ’s 

20 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland 

21 Sec., 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) (“the administrative findings of fact are 

24 conclusive unless any reasonable adjudicator would be 

25 compelled to conclude to the contrary”); Hong Fei Gao v. 
3

1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 

2 credibility determination under substantial evidence 

3 standard). 

4 “Considering the totality of the circumstances, and all 

5 relevant factors, a trier of fact may base a credibility 

6 determination on the demeanor, candor, or responsiveness of 

7 the applicant or witness, the inherent plausibility of the 

8 applicant’s or witness’s account, the consistency between the 

9 applicant’s or witness’s written and oral statements . . . , 

10 the internal consistency of each such statement, [and] the 

11 consistency of such statements with other evidence of record

12 . . . without regard to whether an inconsistency, inaccuracy, 

13 or falsehood goes to the heart of the applicant’s claim.” 

14 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 

15 credibility determination unless, from the totality of the 

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

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

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

19 Gao, 891 F.3d at 76. 

20 Substantial evidence supports the agency’s determination

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

22 attacked and threatened him on account of his political 
4

1 activities for the Nepali Congress Party. The IJ reasonably 

2 found Kumal’s testimony evasive and vague, noting that he 

3 repeatedly claimed to have difficulty answering 

4 straightforward questions on cross-examination. See

5 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 

6 77, 81 n.1 (2d Cir. 2005) (recognizing that particular 

7 deference is given to the trier of fact’s assessment of 

8 demeanor). Those findings are supported by the record and

9 bolstered by the fact that Kumal’s vague testimony that he 

10 knew his father belonged to the Nepali Congress Party but did 

11 not know anything about his political activities was 

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

13 affidavit, in which he indicated he had attended party 

14 meetings and assemblies with his father and that his father 

15 influenced his political activities. See Li Hua Lin v. U.S. 

16 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be 

17 still more confident in our review of observations about an 

18 applicant’s demeanor where, as here, they are supported by 

19 specific examples of inconsistent testimony.”). Further, the 

20 agency did not err in relying on Kumal’s vague testimony 

21 because the IJ and attorneys probed for details regarding the 

22 claims throughout his hearing. See Jin Shui Qiu v. Ashcroft, 
5

1 329 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives 

2 very spare testimony, . . . the IJ . . . may fairly wonder 

3 whether the testimony is fabricated . . . [and] may wish to 

4 probe for incidental details . . . .”), overruled in part on 

5 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 

6 F.3d 296, 305 (2d Cir. 2007). 

7 The agency also reasonably relied on the inconsistency 

8 in Kumal’s statements regarding his own political activities, 

9 his implausible testimony regarding his second encounter with 

10 Maoists, and his failure to initially reveal a Maoist attack 

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

12 Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) 

13 (recognizing that adverse credibility determination may be 

14 based on inherent implausibility if the finding “is tethered 

15 to the evidentiary record” or “record facts . . . viewed in 

16 the light of common sense and ordinary experience”). Kumal 

17 did not provide compelling explanations for these 

18 discrepancies. See Majidi, 430 F.3d at 80 (“A petitioner 

19 must do more than offer a plausible explanation for his 

20 inconsistent statements to secure relief; he must demonstrate 

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

22 his testimony.” (quotation marks omitted)). 
6

1 Given the demeanor, inconsistency, and implausibility

2 findings, the agency’s adverse credibility determination is 

3 supported by substantial evidence. See 8 U.S.C. 

4 § 1158(b)(1)(B)(iii). That determination was dispositive of 

5 asylum, withholding of removal, and CAT relief because all 

6 three claims were based on the same factual predicate. See 

7 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 

8 Because “[a]s a general rule courts and agencies are not 

9 required to make findings on issues the decision of which is 

10 unnecessary to the results they reach,” INS v. Bagamasbad, 

11 429 U.S. 24, 25 (1976), we do not reach the agency’s 

12 alternative findings regarding corroboration and burden of 

13 proof. 

14 For the foregoing reasons, the petition for review is 

15 DENIED. All pending motions and applications are DENIED and 

16 stays VACATED.

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe,

19 Clerk of Court

20