Pellumbaj v. Garland ( 2021 )

19-3639
Pellumbaj v. Garland
BIA
Nelson, IJ
A206 252 510
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 the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 9th day of December, two thousand twenty-one.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 RICHARD J. SULLIVAN,
7 STEVEN J. MENASHI,
8 Circuit Judges.
9 _____________________________________
10
11 DITER PELLUMBAJ,
12 Petitioner,
13
14 v. 19-3639
15 NAC
16 MERRICK B. GARLAND, UNITED
17 STATES ATTORNEY GENERAL,
18 Respondent.
19 _____________________________________
20
21
1 FOR PETITIONER: James A. Lombardi, Law Office of James A.
2 Lombardi, P.C., New York, NY.
3
4 FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney
5 General, Civil Division; Sabatino F. Leo,
6 Senior Litigation Counsel; S. Nicole Nardone,
7 Trial Attorney, Office of Immigration
8 Litigation, United States Department of
9 Justice, Washington, DC.
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DENIED.
13 Petitioner Diter Pellumbaj, a native and citizen of Albania, seeks review of
14 an October 10, 2019 decision of the BIA affirming a March 13, 2018 decision of an
15 Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection
16 under the Convention Against Torture (“CAT”). 1 In re Diter Pellumbaj, No. A 206
17 252 510 (B.I.A. Oct. 10, 2019), aff’g No. A 206 252 510 (Immig. Ct. N.Y. City Mar. 13,
18 2018). We assume the parties’ familiarity with the underlying facts and
19 procedural history.
20 We review the IJ’s decision as modified by the BIA and address only the
21 agency’s conclusion that Pellumbaj failed to present available corroboration. See
1 In his petition, Pellumbaj does not contest the BIA’s denial of CAT relief. See Pet. Br. at 7.
2
1 Yan Chen v. Gonzales, 417 F.3d 268, 271–72 (2d Cir. 2005). We deem the agency’s
2 findings of fact as “conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Wei Sun v.
4 Sessions, 883 F.3d 23, 27 (2d Cir. 2018).
5 The agency did not err in determining that Pellumbaj failed to satisfy his
6 burden of proof for asylum and withholding of removal. An applicant’s
7 testimony “may be sufficient to sustain the applicant’s burden without
8 corroboration, but only if the applicant satisfies the trier of fact that the applicant’s
9 testimony is credible, is persuasive, and refers to specific facts sufficient to
10 demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii) (asylum);
11 id. § 1231(b)(3)(C) (withholding of removal); Wei Sun, 883 F.3d at 28. “Where the
12 trier of fact determines that the applicant should provide evidence that
13 corroborates otherwise credible testimony, such evidence must be provided unless
14 the applicant does not have the evidence and cannot reasonably obtain the
15 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Wei Sun, 883
16 F.3d at 28 (“[A]n applicant may be generally credible but his testimony may not
17 be sufficient to carry the burden of persuading the fact finder of the accuracy of
3
1 his claim of crucial facts if he fails to put forth corroboration that should be readily
2 available.”).
3 Pellumbaj alleged that members of the Socialist Party in Albania beat him
4 twice, in March and June 2013, and threatened him on other occasions on account
5 of his political opinion. His documentary evidence did not corroborate these
6 events. A letter from his mother did not mention the two beatings. And the
7 agency reasonably declined to give weight to a hospital discharge form
8 purportedly showing treatment following the first beating because the form states
9 that Pellumbaj was discharged from the hospital in March 2013, but is dated from
10 2014, after he arrived in the United States. See Y.C. v. Holder, 741 F.3d 324, 332 (2d
11 Cir. 2013) (“We generally defer to the agency’s evaluation of the weight to be
12 afforded an applicant’s documentary evidence.”). Pellumbaj testified that this
13 form, which was not typed on hospital letterhead, was a copy his father obtained
14 from the hospital because Pellumbaj had lost the original; however, the form states
15 “[o]ne copy given to patient” without indicating that it is a duplicate copy or that
16 it was given to someone other than the patient. Certified Administrative Record
17 at 276; see id. at 104. Pellumbaj did not submit any evidence to corroborate the
18 June 2013 attack.
4
1 Moreover, the agency concluded that Pellumbaj could have obtained
2 affidavits from his sister and father, who were with him after at least one of the
3 alleged beatings. Pellumbaj does not dispute that those affidavits were available;
4 indeed, he admits that he could have obtained affidavits from his sister, father,
5 and friends. He nevertheless contends that such affidavits were unnecessary,
6 and cumulative, in light of the one provided by his mother. But contrary to
7 Pellumbaj’s argument, the affidavits would not have been cumulative of other
8 evidence because his mother’s letter did not mention his beatings and the medical
9 record related to only one attack. Because Pellumbaj did not present reasonably
10 available corroboration, the agency did not err in concluding that he failed to meet
11 his burden of proof. See 8 U.S.C. § 1158(b)(1)(B)(ii). That finding is dispositive
12 of Pellumbaj’s asylum and withholding of removal claims, as both are based on
13 the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
14 2006).
15 For the foregoing reasons, the petition for review is DENIED. All pending
16 motions and applications are DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk of Court
5