Gjonaj v. Lynch ( 2016 )

15-2359
Gjonaj v. Lynch
BIA
Vomacka, IJ
A099 000 574
A099 000 575
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of November, two thousand sixteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 AGO GJONAJ, ZANA AGRAJA-GJONAJ,
14 Petitioners,
15
16 v. 15-2359
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: James A. Lombardi, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Holly M.
27 Smith, Senior Litigation Counsel;
28 Juria L. Jones, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DENIED.
4 Petitioners Ago Gjonaj and Zana Agraja-Gjonaj, natives and
5 citizens of Albania, seek review of a June 30, 2015, decision
6 of the BIA, affirming a February 20, 2014, decision of an
7 Immigration Judge (“IJ”) denying Gjonaj’s application for
8 asylum, withholding of removal, and relief under the Convention
9 Against Torture (“CAT”).1 In re Ago Gjonaj, et al., No. A099
10 000 574/575 (B.I.A. June 30, 2015), aff’g No. A099 000 574/575
11 (Immigr. Ct. N.Y.C. Feb. 20, 2014). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed the
15 IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t
16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005).2 The applicable
17 standards of review are well established. 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
19 (2d Cir. 2008).
1
The IJ also denied Zana Agraja-Gjonaj’s separate application for asylum and related relief. She
did not appeal that decision to the BIA and does not challenge it in this Court. Agraja-Gjonaj,
Gjonaj’s wife, was however included as a derivative beneficiary in Gjonaj’s application.
2
Gjonaj’s challenges to the IJ’s finding regarding his fraudulent passport are not before us
because the BIA explicitly excluded that finding from its decision. See Xue Hong Yang, 426 F.3d
at 522.
2
1 The REAL ID Act credibility standard provides that the
2 agency may, “[c]onsidering the totality of the circumstances,”
3 base a credibility finding on an asylum applicant’s “demeanor,
4 candor, or responsiveness,” the plausibility of his account,
5 and inconsistencies in his statements and evidence “without
6 regard to whether” those inconsistencies go “to the heart of
7 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
9 determination unless . . . it is plain that no reasonable
10 fact-finder could make such an adverse credibility ruling.” Xiu
11 Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must do more
12 than offer a plausible explanation for his inconsistent
13 statements to secure relief; he must demonstrate that a
14 reasonable fact-finder would be compelled to credit his
15 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
16 (internal quotation marks and citations omitted). Substantial
17 evidence supports the agency’s determination that Gjonaj was
18 not credible.
19 The agency reasonably relied on inconsistencies regarding
20 Gjonaj’s medical record. See Xiu Xia Lin, 534 F.3d at 166-67.
21 Gjonaj testified that he was attacked twice -- in October 2000
22 outside a polling station and in September 2001 while detained
3
1 -- and that he had submitted medical records for each attack.
2 Gjonaj, however, submitted only one medical certificate from
3 2007 documenting treatment in October 2001—a date which matched
4 neither of his alleged beatings. Gjonaj gave a series of
5 inconsistent explanations: the first attack actually occurred
6 in October 2001, not October 2000; the record pertained to the
7 first attack in October 2000; the record referred to the second
8 attack in September 2001. The agency was not required to credit
9 these explanations, which were not compelling and created
10 further inconsistencies that support the credibility
11 determination. See Majidi, 430 F.3d at 80; Xiu Xia Lin, 534 F.3d
12 at 166-67.
13 On appeal to the BIA, Gjonaj maintained that his testimony
14 was consistent. In his brief to this Court, however, Gjonaj
15 argues that any inconsistency was the result of the confusing
16 phrasing of questions on cross-examination. We decline to
17 consider this argument because it is unexhausted. See Lin Zhong
18 v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007).
19 The credibility determination was also reasonably based on
20 the absence of certain corroborating evidence. An applicant’s
21 failure to corroborate testimony may bear on credibility, either
22 because the absence of particular evidence is viewed as
4
1 suspicious, or because the absence of corroboration in general
2 makes an applicant unable to rehabilitate testimony already
3 called into question. See Biao Yang v. Gonzales, 496 F.3d 268,
4 273 (2d Cir. 2007). Beyond the problems with Gjonaj’s medical
5 documentation, the IJ noted that Gjonaj failed to provide any
6 letters of support from his brother (who was allegedly detained
7 with him for three nights and beaten) or either of his parents
8 (who were both present when he and his brother were arrested,
9 and who have allegedly been visited by police searching for
10 Gjonaj).
11 Given the foregoing inconsistencies and lack of
12 corroboration, the totality of the circumstances supports the
13 agency’s adverse credibility determination. See Xiu Xia Lin,
14 534 F.3d at 167. That finding is dispositive of asylum,
15 withholding of removal, and CAT relief because all three claims
16 are based on the same factual predicate. See Paul v. Gonzales,
17 444 F.3d 148, 156-57 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5