Bujaj v. Lynch ( 2015 )

13-3120 (L)
Bujaj v. Lynch
BIA
Sichel, IJ
A200 126 354/355
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 for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
1st day of May, two thousand fifteen.
PRESENT:
JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
KUJTIM BUJAJ, BUJAJ VJOLLCA, AKA
VJOLICA BUJAJ,
Petitioners,
v. 13-3120(L),
14-819(Con)
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
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Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Loretta E. Lynch is automatically substituted for former Attorney General
Eric H. Holder, Jr.
FOR PETITIONERS: Michael P. DiRaimondo, Melville,
New York.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Linda S. Wernery,
Assistant Director; Gerald M.
Alexander, Trial Attorney, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of these petitions for review of two
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioners Kujtim and Vjollca Bujaj, natives and citizens
of Albania, seek review of: (1) the August 2, 2013, decision
of the BIA affirming a September 7, 2011, decision of an
Immigration Judge (“IJ”) denying their applications for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”), In re Kujtim Bujaj, Vjollca Bujaj, Nos. A200
126 354/355 (B.I.A. Aug. 2, 2013), aff’g No. A200 126 354/355
(Immig. Ct. N.Y. City Sept. 7, 2011); and (2) the February 18,
2014, decision of the BIA denying their motion to reopen, In
re Kujtim Bujaj, Vjollca Bujaj, Nos. A200 126 354/355 (B.I.A.
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Feb. 18, 2014). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
I. Merits - Docket Number 13-3120(L)
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam). The
agency may, “[c]onsidering the totality of the circumstances,”
base a credibility finding on inconsistencies in an asylum
applicant’s statements and other record evidence “without
regard to whether” they go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
at 163 n.2. Substantial evidence supports the agency’s
determination that Petitioners were not credible.
The agency reasonably relied on inconsistencies between
Petitioners’ testimony and their earlier sworn statements to
border officials and asylum officers. See also Xiu Xia Lin,
534 F.3d at 165-67. As an initial matter, the IJ did not err
in finding the typewritten records of Petitioners’ earlier
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sworn statements reliable. See Ming Zhang v. Holder, 585 F.3d
715, 721-25 (2d Cir. 2009). Petitioners’ statements were made
with the assistance of interpreters, they signed each page of
their recorded statements to border officials, and they were
read summaries of their accounts during their credible fear
interviews (at which Kujtim had counsel). See id.As the IJ noted, in contrast with their asylum claims,
Petitioners told officials at their border interview that they
did not fear harm in Albania and that they came to the United
States to seek employment. See Xiu Xia Lin, 534 F.3d at 166
n.3. Furthermore, Kujtim’s account of his alleged beating in
September 2005 differed between his credible fear interview and
his merits hearing. At his interview, he claimed that police
detained him in his village, walked him to an abandoned
building, and beat him. However, he testified inconsistently
at his hearing that police forced him into a car and drove him
around for more than one hour before stopping at an abandoned
house to beat him. Kujtim also made conflicting statements as
to whether his family picked him up from the abandoned house
or a stranger drove him home.
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Vjollca’s accounts of the harm she suffered were also
inconsistent between her credible fear interview and her merits
hearing. She asserted at her interview that police thwarted
individuals who attempted to kidnap her, while she testified
at her hearing that an unidentified man scared away her
attackers. Petitioners failed to provide compelling
explanations for their discrepant statements. See Ming Zhang,
585 F.3d at 720; see also Majidi v. Gonzales, 430 F.3d 77, 80
(2d Cir. 2005).
Having questioned Petitioners’ credibility, the IJ
reasonably relied further on their failure to provide credible
evidence to rehabilitate their testimony. See Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As the IJ noted,
Kujtim’s medical report and letters from the Democratic Party
and the Association of the Former Politically Persecuted People
of Albania were inconsistent with his testimony regarding the
September 2005 incident.
Given the inconsistency and corroboration findings, the
agency’s adverse credibility determination is supported by
substantial evidence, and is dispositive of Petitioners’ claims
for asylum, withholding of removal, and CAT relief. See
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8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006). Accordingly, we do not consider the
agency’s alternative basis for denying relief.
II. Motion to Reopen – Docket Number 14-819(Con)
We review the BIA’s denial of Petitioners’ motion to reopen
for abuse of discretion, and any factual findings for
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138,
168-69 (2d Cir. 2008). “A motion to reopen proceedings shall
not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could
not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). Failure to offer such evidence is,
therefore, a proper ground on which the BIA may deny a motion
to reopen, as is the movant’s failure to establish a prima facie
case for the underlying substantive relief sought. I.N.S. v.
Abudu, 485 U.S. 94, 104-05 (1988). The BIA did not abuse its
discretion in denying Petitioners’ motion to reopen.
First, it had previously considered and reasonably
rejected on appeal Kujtim’s assertion that he was nervous and
had difficulty understanding the interpreter at his credible
fear interview because that interview was conducted with his
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counsel present and Kujtim agreed with the contents of the
written summary of the interview (which included his
inconsistent statements). See Ming Zhang, 585 F.3d at 722,
725. Moreover, although Kujtim was informed that he could stop
the interview if he did not understand the proceedings, he did
not do so.
The BIA also did not err in finding previously available
a psychological report related to Kujtim’s purported memory
issues. See 8 C.F.R. § 1003.2(c)(1). Alternatively, the BIA
reasonably concluded that the report was not material as it did
not rebut the underlying adverse credibility determination.
See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005). Indeed, the
author of the report explicitly stated that his conclusion that
Kujtim had poor short term memory concerned his memory only at
the time of the evaluation in 2013, and thus, it did not explain
Kujtim’s inconsistent statements made in 2006. Similarly, the
BIA did not abuse its discretion (or violate Petitioners’ due
process rights) in determining that evidence that the Socialist
Party was in power in Albania was immaterial because Petitioners
were not credible as to their assertion that Socialists had
targeted them on account of their political opinion. See id.7
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is VACATED,
and any pending motion for a stay of removal in these petitions
is DISMISSED as moot. Any pending request for oral argument
in these petitions is DENIED in accordance with Federal Rule
of Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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