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. 

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 17th 4 day of March, two thousand twenty. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES,

8 RAYMOND J. LOHIER, Jr., 

9 STEVEN J. MENASHI,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 NAOMI KALALA, 

14 Petitioner, 

15 

16 v. 18-791 

17 NAC 

18 WILLIAM P. BARR, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Thomas V. Massucci, New York, NY. 

24 

25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

26 General; John S. Hogan, Assistant 

27 Director; Lindsay Corliss, Trial 

28 Attorney; Office of Immigration 
2

1 Litigation, United States 

2 Department of Justice, Washington, 

3 DC. 

4 UPON DUE CONSIDERATION of this petition for review of a 

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

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

7 is DENIED. 

8 Petitioner Naomi Kalala, a native and citizen of the 

9 Democratic Republic of the Congo, seeks review of a February 

10 26, 2018 decision of the BIA affirming an April 20, 2017 

11 decision of an Immigration Judge (“IJ”) denying Kalala’s 

12 application for asylum, withholding of removal, and relief 

13 under the Convention Against Torture (“CAT”). In re Naomi 

14 Kalala, No. A 205 826 228 (B.I.A. Feb. 26, 2018), aff’g No. A

15 205 826 228 (Immig. Ct. N.Y.C.Apr. 20, 2017). We assume the 

16 parties’ familiarity with the underlying facts and procedural 

17 history. 

18 Under the circumstances of this case, we review both the 

19 IJ’s and BIA’s decisions “for the sake of completeness.” See 

20 Wangchuck v. Dep’t of Homeland Sec., Immigration & Customs 

21 Enf’t, 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); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 

24 (2d Cir. 2018) (reviewing adverse credibility determination 
3

1 under a substantial evidence standard). The governing REAL 

2 ID Act credibility standard provides as follows: 

3 Considering the totality of the circumstances, and 

4 all relevant factors, a trier of fact may base a 

5 credibility determination on . . . the consistency 

6 between the applicant’s or witness’s written and 

7 oral statements . . . , the internal consistency of 

8 each such statement, the consistency of such 

9 statements with other evidence of record . . . , and 

10 any inaccuracies or falsehoods in such statements, 

11 without regard to whether an inconsistency, 

12 inaccuracy, or falsehood goes to the heart of the 

13 applicant’s claim, or any other relevant factor. 

14 

15 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer . . . to an IJ’s 

16 credibility determination unless, from the totality of the 

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

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

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

20 Gao, 891 F.3d at 76. Substantial evidence supports the 

21 agency’s adverse credibility determination. 

22 The agency was entitled to rely on the asylum interview 

23 record in assessing Kalala’s credibility. The agency may 

24 rely on the record of an asylum interview if the record 

25 contains a “meaningful, clear, and reliable summary of the 

26 statements made by [the applicant] at the interview.” Diallo 

27 v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006) (citation and 

28 internal quotation marks omitted). Asylum interviews do not 

29 require the same special scrutiny as airport or credible fear 
4

1 interviews because they “take place after the alien has 

2 arrived in the United States, has taken the time to submit a 

3 formal asylum application, and has had the opportunity to 

4 gather his or her thoughts, to prepare for the interview, and 

5 to obtain counsel.” Id. In this case, the record contains 

6 the asylum officer’s notes reflecting the questions and 

7 Kalala’s answers, and a typed assessment of Kalala’s claim. 

8 Kalala argues that the non-responsive and conflicting answers 

9 in the asylum interview record are evidence that the record 

10 was not reliable. But a factfinder could conclude that the 

11 conflicting answers were the result of Kalala’s fabrication, 

12 not her lack of English fluency. When competing inferences 

13 can be drawn from the evidence, we defer to the IJ. See 

14 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007). 

15 The agency also did not err in relying on the 

16 inconsistency among Kalala’s asylum application, asylum 

17 interview, and testimony regarding whether she had two 

18 children. Kalala listed her nieces as her children on her 

19 asylum application and testified that she did so because she 

20 was taking care of them and they were staying with her. The 

21 IJ was not required to accept this explanation, particularly 

22 as Kalala testified that she was not taking care of them at 

23 the time she filed her asylum application. See Majidi v. 
5

1 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 

2 do more than offer a plausible explanation for his 

3 inconsistent statements to secure relief; he must demonstrate 

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

5 his testimony.” (internal quotation marks and citations 

6 omitted)). 

7 The record supports the agency’s reliance on additional 

8 inconsistencies. Kalala’s testimony and statements at the 

9 asylum interview were inconsistent regarding the location of 

10 the children. The asylum interview record and asylum 

11 application were inconsistent regarding where she was raped. 

12 And her testimony and documentary evidence were inconsistent 

13 regarding whether she had a miscarriage following the rape. 

14 The agency also did not err in determining that Kalala’s 

15 use of a false passport to obtain a U.S. visa in South Africa 

16 undermined her credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii) 

17 (explaining that IJ may rely on falsehoods in any statement 

18 “without regard to whether . . . [it] goes to the heart of 

19 the applicant’s claim”). Making false statements to flee 

20 persecution is consistent with the pursuit of asylum, and it 

21 is “unreasonable” to “penalize an applicant for lying to 

22 escape a country where he or she faces persecution.” Rui 

23 Ying Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir. 2006). But 
6

1 here the agency reasonably determined that Kalala was not 

2 directly fleeing persecution at the time that she used the 

3 false passport. See Mei Fun Wong v. Holder, 633 F.3d 64, 72 

4 (2d Cir. 2011) (“[P]ersecution is an extreme concept that 

5 does not include every sort of treatment our society regards 

6 as offensive.” (internal quotation marks omitted)). 

7 Finally, two physician affidavits provided by Kalala do 

8 not compel the conclusion that Kalala was credible. See Xiu 

9 Xia Lin, 534 F.3d at 167 (“We defer . . . to an IJ’s 

10 credibility determination unless . . . it is plain that no 

11 reasonable fact-finder could make such an adverse credibility 

12 ruling.”); see also Hong Fei Gao, 891 F.3d at 79 (“review of 

13 an agency’s adverse credibility determination is conducted on 

14 the record as a whole” (internal quotation marks omitted)). 

15 While a physician’s evaluation provided evidence that Kalala 

16 was harmed, it did not corroborate that she was harmed on 

17 account of her husband’s political activities. Similarly, 

18 an affidavit signed by a psychiatrist would not necessarily 

19 compel a reasonable factfinder to find Kalala credible. See 

20 Xiu Xia Lin, 534 F.3d at 167; cf. Hong Fei Gao, 891 F.3d at 

21 81 (determining that omissions were entitled to little weight 

22 in part because “when considering the record as a whole, there 

23 was corroborating evidence of petitioners’ claims” of past 
7

1 persecution by authorities (internal quotation marks and 

2 citation omitted)). 

3 Given the inconsistencies among Kalala’s testimony, 

4 application, asylum interview record, and medical documents, 

5 substantial evidence supports the adverse credibility 

6 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

7 Lin, 534 F.3d at 167. Because all of Kalala’s claims were 

8 based on the same factual predicate, the adverse credibility 

9 determination is dispositive of asylum, withholding of 

10 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 

11 156–57 (2d Cir. 2006). 

12 For the foregoing reasons, the petition for review is 

13 DENIED. All pending motions and applications are DENIED and 

14 stays VACATED. 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, 

17 Clerk of Court