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. 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 17 th**  **day of March, two thousand twenty.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **RAYMOND J. LOHIER, Jr.,** 8 **STEVEN J. MENASHI,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **NAOMI KALALA,** 13 Petitioner **,** 14 15 **v. 18-791** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Thomas V. Massucci, New York, NY. 23 24 **FOR RESPONDENT:** Joseph H. Hunt, Assistant Attorney 25 General; John S. Hogan, Assistant 26 Director; Lindsay Corliss, Trial 27 Attorney; Office of Immigration 282 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Naomi Kalala, a native and citizen of the 8 Democratic Republic of the Congo, seeks review of a February 9 26, 2018 decision of the BIA affirming an April 20, 2017 10 decision of an Immigration Judge (“IJ”) denying Kalala’s 11 application for asylum, withholding of removal, and relief 12 under the Convention Against Torture (“CAT”). In re Naomi 13 Kalala, No. A 205 826 228 (B.I.A. Feb. 26, 2018), aff’g No. A 14 205 826 228 (Immig. Ct. N.Y.C.Apr. 20, 2017). We assume the 15 parties’ familiarity with the underlying facts and procedural 16 history. 17 Under the circumstances of this case, we review both the 18 IJ’s and BIA’s decisions “for the sake of completeness.” See 19 Wangchuck v. Dep’t of Homeland Sec., Immigration & Customs 20 Enf’t , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 21 standards of review are well established. See 8 U.S.C. 22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 23 (2d Cir. 2018) (reviewing adverse credibility determination 243 under a substantial evidence standard). The governing REAL 1 ID Act credibility standard provides as follows: 2 Considering the totality of the circumstances, and 3 all relevant factors, a trier of fact may base a 4 credibility determination on . . . the consistency 5 between the applicant’s or witness’s written and 6 oral statements . . . , the internal consistency of 7 each such statement, the consistency of such 8 statements with other evidence of record . . . , and 9 any inaccuracies or falsehoods in such statements, 10 without regard to whether an inconsistency, 11 inaccuracy, or falsehood goes to the heart of the 12 applicant’s claim, or any other relevant factor. 13 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. Substantial evidence supports the 20 agency’s adverse credibility determination. 21 The agency was entitled to rely on the asylum interview 22 record in assessing Kalala’s credibility. The agency may 23 rely on the record of an asylum interview if the record 24 contains a “meaningful, clear, and reliable summary of the 25 statements made by [the applicant] at the interview.” Diallo 26 v. Gonzales , 445 F.3d 624, 632 (2d Cir. 2006) (citation and 27 internal quotation marks omitted). Asylum interviews do not 28 require the same special scrutiny as airport or credible fear 294 interviews because they “take place after the alien has 1 arrived in the United States, has taken the time to submit a 2 formal asylum application, and has had the opportunity to 3 gather his or her thoughts, to prepare for the interview, and 4 to obtain counsel.” Id. In this case, the record contains 5 the asylum officer’s notes reflecting the questions and 6 Kalala’s answers, and a typed assessment of Kalala’s claim. 7 Kalala argues that the non-responsive and conflicting answers 8 in the asylum interview record are evidence that the record 9 was not reliable. But a factfinder could conclude that the 10 conflicting answers were the result of Kalala’s fabrication, 11 not her lack of English fluency. When competing inferences 12 can be drawn from the evidence, we defer to the IJ. See 13 Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007). 14 The agency also did not err in relying on the 15 inconsistency among Kalala’s asylum application, asylum 16 interview, and testimony regarding whether she had two 17 children. Kalala listed her nieces as her children on her 18 asylum application and testified that she did so because she 19 was taking care of them and they were staying with her. The 20 IJ was not required to accept this explanation, particularly 21 as Kalala testified that she was not taking care of them at 22 the time she filed her asylum application. See Majidi v. 235 Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 1 do more than offer a plausible explanation for his 2 inconsistent statements to secure relief; he must demonstrate 3 that a reasonable fact-finder would be compelled to credit 4 his testimony.” (internal quotation marks and citations 5 omitted)). 6 The record supports the agency’s reliance on additional 7 inconsistencies. Kalala’s testimony and statements at the 8 asylum interview were inconsistent regarding the location of 9 the children. The asylum interview record and asylum 10 application were inconsistent regarding where she was raped. 11 And her testimony and documentary evidence were inconsistent 12 regarding whether she had a miscarriage following the rape. 13 The agency also did not err in determining that Kalala’s 14 use of a false passport to obtain a U.S. visa in South Africa 15 undermined her credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii) 16 (explaining that IJ may rely on falsehoods in any statement 17 “without regard to whether . . . [it] goes to the heart of 18 the applicant’s claim”). Making false statements to flee 19 persecution is consistent with the pursuit of asylum, and it 20 is “unreasonable” to “penalize an applicant for lying to 21 escape a country where he or she faces persecution.” Rui 22 Ying Lin v. Gonzales , 445 F.3d 127, 134 (2d Cir. 2006). But 236 here the agency reasonably determined that Kalala was not 1 directly fleeing persecution at the time that she used the 2 false passport. See Mei Fun Wong v. Holder , 633 F.3d 64, 72 3 (2d Cir. 2011) (“[P]ersecution is an extreme concept that 4 does not include every sort of treatment our society regards 5 as offensive.” (internal quotation marks omitted)). 6 Finally, two physician affidavits provided by Kalala do 7 not compel the conclusion that Kalala was credible. See Xiu 8 Xia Lin , 534 F.3d at 167 (“We defer . . . to an IJ’s 9 credibility determination unless . . . it is plain that no 10 reasonable fact-finder could make such an adverse credibility 11 ruling.”); see also Hong Fei Gao , 891 F.3d at 79 (“review of 12 an agency’s adverse credibility determination is conducted on 13 the record as a whole” (internal quotation marks omitted)). 14 While a physician’s evaluation provided evidence that Kalala 15 was harmed, it did not corroborate that she was harmed on 16 account of her husband’s political activities. Similarly, 17 an affidavit signed by a psychiatrist would not necessarily 18 compel a reasonable factfinder to find Kalala credible. See 19 Xiu Xia Lin , 534 F.3d at 167; cf. Hong Fei Gao , 891 F.3d at 20 81 (determining that omissions were entitled to little weight 21 in part because “when considering the record as a whole, there 22 was corroborating evidence of petitioners’ claims” of past 237 persecution by authorities (internal quotation marks and 1 citation omitted)). 2 Given the inconsistencies among Kalala’s testimony, 3 application, asylum interview record, and medical documents, 4 substantial evidence supports the adverse credibility 5 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 6 Lin , 534 F.3d at 167. Because all of Kalala’s claims were 7 based on the same factual predicate, the adverse credibility 8 determination is dispositive of asylum, withholding of 9 removal, and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 10 156–57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. All pending motions and applications are DENIED and 13 stays VACATED. 14

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