Piroli v. Sessions ( 2018 )

16-3778
Piroli v. Sessions
BIA
Page, IJ
A078 971 104
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of July, two thousand eighteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 NIKOLIN PIROLI,
15 Petitioner,
16
17 v. 16-3778
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Charles Christophe, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Papu Sandhu,
28 Assistant Director; Victor M.
29 Lawrence, Senior Litigation
30 Counsel, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Nikolin Piroli, a native and citizen of
6 Albania, seeks review of an October 11, 2016, decision of the
7 BIA affirming a May 14, 2015, decision of an Immigration Judge
8 (“IJ”) denying Piroli’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Nikolin Piroli, No. A 078 971 104 (B.I.A.
11 Oct. 11, 2016), aff’g No. A 078 971 104 (Immig. Ct. N.Y. City
12 May 14, 2015). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed both the BIA’s and IJ’s decisions. See
15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
16 The standards of review are well established. See 8 U.S.C.
17 § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
18 Cir. 2009).
19 Piroli filed for asylum and related relief before May
20 11, 2005, so his application is not subject to the
21 credibility provisions of the REAL ID Act. See REAL ID Act
22 of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303
23 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter
2
1 of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006). In pre-REAL ID
2 Act cases, inconsistencies and other discrepancies in the
3 evidence are often sufficient to support an adverse
4 credibility determination, but they “need not necessarily
5 be fatal . . . if the disparities are relatively minor and
6 isolated and do not concern material facts,” and the
7 testimony is otherwise “generally consistent, rational, and
8 believable.” Diallo v. U.S. Dep’t of Justice, 548 F.3d
9 232, 234 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t
10 of Justice, 471 F.3d 315, 335 (2d Cir. 2006)). A
11 discrepancy generally must be substantial when measured
12 against the record as a whole, Secaida-Rosales v. INS, 331
13 F.3d 297, 308 (2d Cir. 2003), but “even where an IJ relies
14 on discrepancies or lacunae that, if taken separately,
15 concern matters collateral or ancillary to the claim, . . .
16 the cumulative effect may nevertheless be deemed
17 consequential by the fact-finder,” Tu Lin v. Gonzales, 446
18 F.3d 395, 402 (2d Cir. 2006) (internal citations and
19 quotation marks omitted); see also Liang Chen v. U.S. Att’y
20 Gen., 454 F.3d 103, 106-107 (2d Cir. 2006) (“[A]n IJ need
21 not consider the centrality vel non of each individual
22 discrepancy or omission” and can instead “rely upon the
23 cumulative impact of such inconsistencies, and may conduct
3
1 an overall evaluation of testimony in light of its
2 rationality or internal consistency and the manner in which
3 it hangs together with other evidence.” (internal citation
4 and quotation marks omitted)). Substantial evidence
5 supports the agency’s determination that Piroli was not
6 credible.
7 The IJ reasonably relied on omissions in Piroli’s
8 application and his parents’ letters in evaluating his
9 credibility. See Cheng Tong Wang v. Gonzales, 449 F.3d
10 451, 453 (2d Cir. 2006) (“[O]missions that go to a heart of
11 an applicant’s claim can form the basis for an adverse
12 credibility determination.”). A letter from Piroli’s
13 parents omits his purported July 2001 arrest and detention.
14 And Piroli’s original application omitted his allegation
15 that Albanian police routinely threatened him in 1997, and
16 both of his applications omitted his claim that the police
17 looked for him at his parents’ home while he sought refuge
18 with his uncle. The agency was not compelled to accept the
19 explanation that the preparer or translator omitted these
20 details because Piroli testified that he had reviewed his
21 application and approved of its contents. See Majidi v.
22 Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (holding that
23 an agency need not credit an applicant’s explanations for
4
1 inconsistent testimony unless those explanations would
2 compel a reasonable fact-finder to do so).
3 Moreover, the IJ reasonably relied on an additional
4 inconsistency that arose during the remanded proceedings.
5 Piroli’s statement that he did not engage in political
6 activities in 1991 contradicted his updated asylum
7 application, in which he claimed that he participated in
8 meetings, demonstrations, and protests that year. The
9 agency was permitted to rely on the “cumulative effect” of
10 that inconsistency and the omissions in assessing Piroli’s
11 credibility. Tu Lin, 446 F.3d at 402; see also Liang Chen,
12 454 F.3d at 106-07.
13 Finally, the agency reasonably relied on the lack of
14 objective, reliable documentary evidence to corroborate
15 Piroli’s Democratic Party membership and his family’s
16 hardships. See Biao Yang v. Gonzales, 496 F.3d 268, 273
17 (2d Cir. 2007) (“An applicant’s failure to corroborate his
18 or her testimony may bear on credibility, because the
19 absence of corroboration in general makes an applicant
20 unable to rehabilitate testimony that has already been
21 called into question.”). The IJ did not err in giving
22 diminished weight to the documents from Albania, which
23 included affidavits from his parents, three brothers, and a
5
1 pastor. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2 2013) (“We defer to the agency’s determination of the
3 weight afforded to an alien’s documentary evidence.”). And
4 the IJ reasonably accorded limited weight to the portions
5 of the statement from Dr. Bernd J. Fischer that discussed
6 Piroli’s personal circumstances, as those sections were
7 based only on information Piroli provided to Fischer. See
8 id.
9 Substantial evidence supports the agency’s adverse
10 credibility determination given the inconsistency and
11 omissions, as well as the lack of reliable documentary
12 evidence. See Diallo, 548 F.3d at 234. The adverse
13 credibility determination is dispositive of asylum,
14 withholding of removal, and CAT relief because all three
15 claims rely on Piroli’s credibility. See Paul v. Gonzales,
16 444 F.3d 148, 156-57 (2d Cir. 2006).
17 Piroli’s remaining arguments are meritless. Because
18 the IJ reasonably determined that Piroli’s claim of past
19 persecution on account of his Democratic Party affiliation
20 was not credible, any arguments regarding the current
21 authority of the opposition party or an imputed political
22 opinion are irrelevant. And contrary to Piroli’s position,
23 the IJ did address Piroli’s alleged detention but suggested
6
1 that the allegations regarding it were questionable because
2 Piroli’s parents did not mention the detention in their
3 letter.
4 Finally, Piroli attempts to state a due process claim,
5 contending that the IJ analyzed his case too hastily and
6 had to correct himself on the record at least once. To
7 state a due process claim, Piroli must show that he (1) was
8 denied a “full and fair opportunity” to present his claims
9 or was otherwise deprived of “fundamental fairness,” Burger
10 v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal
11 quotation marks omitted); and (2) experienced “cognizable
12 prejudice,” Garcia–Villeda v. Mukasey, 531 F.3d 141, 149
13 (2d Cir. 2008) (internal quotation marks omitted). Piroli
14 does neither: he does not demonstrate that an initial
15 misperception regarding social security payments affected
16 the IJ’s decision making, given that the IJ corrected
17 himself, nor does Piroli show that the outcome of his case
18 would have been different had the IJ adjudicated his case
19 more slowly. Accordingly, the claims Piroli raises as
20 “reversible error” have no merit.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of removal
23 that the Court previously granted in this petition is VACATED,
7
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
8