Bojku v. Holder , 383 F. App'x 85 ( 2010 )

09-4378-ag
Bojku v. Holder
BIA
Sichel, IJ
A077 641 866
A077 641 867
A077 641 868
A077 641 869
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of July, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 IDAJETE BOJKU, RIZA BOJKU, MARSEL
14 BOJKU, JULIAN BOJKU,
15 Petitioners,
16
17 v. 09-4378-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Andrew P. Johnson, New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
1 General; Lyle D. Jentzer, Senior
2 Litigation Counsel; Aaron R. Petty,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED, that the petition for review
10 is DENIED.
11 Petitioners, natives and citizens of Albania, seek
12 review of a September 22, 2009 order of the BIA, affirming
13 the March 25, 2005 decision of Immigration Judge (“IJ”)
14 Helen Sichel, which denied their application for asylum and
15 withholding of removal. In re Bojku, Nos. A077 641
16 866/867/868/869 (B.I.A. Sept. 22, 2009), aff’g Nos. A077 641
17 866/867/868/869 (Immig. Ct. N.Y. City Mar. 25, 2005). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case. 1
20 Under the circumstances of this case, we review the
21 decision of the IJ as supplemented by the BIA. See Yan Chen
22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
1
While Idajete Bojku was designated the lead
applicant, Petitioners’ claims were predicated solely on
the alleged persecution of her husband, Riza Bojku. For
the sake of clarity, we refer to him as “Bojku”
throughout.
2
1 applicable standards of review are well-established. See
2 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun
3 v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
4 Substantial evidence supports the agency’s adverse
5 credibility determination. In finding Riza Bojku’s
6 testimony not credible, the IJ relied in large part on his
7 demeanor, specifying at least four instances where he paused
8 before answering when asked to describe the persecution he
9 allegedly suffered, and finding that “throughout much of the
10 testimony [he] was struggling to remember the answers to
11 questions as though he was attempting to remember the lines
12 in a perfectly memorized script.” IJ at 8. Because the IJ
13 was in the best position to observe Bojku’s manner while
14 testifying, we afford her demeanor finding particular
15 deference. See Li Hua Lin v. U.S. Dep’t of Justice, 453
16 F.3d 99, 109 (2d Cir. 2006); Zhou Yun Zhang v. INS, 386 F.3d
17 66, 73-74 (2d Cir. 2004), overruled on other grounds by Shi
18 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
19 2007) (en banc).
20 Having found Bojku’s testimony not credible, the agency
21 reasonably found that his documentary evidence was
22 questionable, Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
3
1 Cir. 2007), and did not err in rejecting Petitioners’
2 purported government-issued documents in part because they
3 were not authenticated in compliance with 8 C.F.R. § 287.6,
4 see Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008);
5 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007)
6 (distinguishing Cao He Lin v. U.S. Dep’t of Justice, 428
7 F.3d 391, 404-05 (2d Cir. 2005), and holding that the BIA
8 did not err in rejecting a document in part due to lack of
9 authentication); Matter of H-L-H-, 25 I. & N. Dec. 209, 214
10 & n.5 (BIA 2010) (reasoning that authentication is more
11 reasonably expected when the applicant’s family allegedly
12 sought out evidence from authorities on the applicant’s
13 behalf for the purpose of asylum proceedings, as opposed to
14 a contemporaneously created report of a past event).
15 Furthermore, the certificate allegedly issued by the
16 Albanian Democratic Party did not confirm Bojku’s claim that
17 he was arrested and mistreated due to his political opinion.
18 When asked why the certificate did not mention his alleged
19 arrest and mistreatment, Bojku was unable to explain the
20 omission. Contrary to Petitioners’ argument that the agency
21 did not identify any “inconsistency” between Bojku’s
22 testimony and his written statement, the omission the IJ
4
1 identified was the functional equivalent of an inconsistency
2 and supported the IJ’s adverse credibility determination.
3 See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir.
4 2008).
5 Ultimately, because a reasonable fact-finder would not
6 be compelled to conclude to the contrary, the IJ’s adverse
7 credibility determination was supported by substantial
8 evidence. 2 See Shu Wen Sun, 510 F.3d at 379-80; see also
9 Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d 289,
10 294 (2d Cir. 2006). Accordingly, the agency did not err in
11 denying Petitioners’ applications for asylum and withholding
12 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
13 Cir. 2006).
14 Finally, the agency did not err in failing to address
15 the possibility of CAT relief, because Petitioners expressly
16 waived this form of relief before IJ, and only mentioned it
17 glancingly in their brief before BIA. See Lin Zhong v. U.S.
18 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007); see also
19 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
2
We decline to address Petitioners’ arguments
relating to the parties’ stipulation because they failed
to exhaust this issue before the BIA. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 121-22 (2d Cir.
2007).
5
1 2005) (noting that an argument is not considered raised when
2 it is mentioned in a “single conclusory sentence”).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
6