Kalala v. Barr BIA Hom, IJ A205 826 228

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 28

2
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 24

3
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 29

4
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. 23

5
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 23

6
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 23

7
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