Dekaj v. Barr

17-3920
Dekaj v. Barr
BIA
Christensen, IJ
A206 429 345
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 19th day of December, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13
14 FATMIR DEKAJ,
15 Petitioner,
16
17 v. 17-3920
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 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; Jeffery R.
28 Leist, Senior Litigation Counsel;
29 Lance L. Jolley, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, 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 Fatmir Dekaj, a native and citizen of Albania,
6 seeks review of a November 9, 2017, decision of the BIA
7 affirming a February 15, 2017, decision of an Immigration
8 Judge (“IJ”) denying his application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Fatmir Dekaj, No. A206 429 345 (B.I.A. Nov.
11 9, 2017), aff’g No. A206 429 345 (Immig. Ct. N.Y. City Feb.
12 15, 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA, i.e., minus the
16 IJ’s inconsistency findings that the BIA did not affirm. See
17 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
20 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
2
1 determination on . . . the consistency between the
2 applicant’s or witness’s written and oral statements . . . ,
3 the internal consistency of each such statement, the
4 consistency of such statements with other evidence of
5 record . . . without regard to whether an inconsistency,
6 inaccuracy, or falsehood goes to the heart of the applicant’s
7 claim, or any other relevant factor.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
9 163-64 (2d Cir. 2008). Substantial evidence supports the
10 agency’s determination that Dekaj was not credible as to his
11 claims that Socialist Party members attacked him in 2012 and
12 police detained and beat him in 2013 on account of his
13 membership in the Democratic Party.
14 The agency reasonably relied on Dekaj’s inconsistent and
15 changing testimony regarding whether his alleged 2012 attack
16 was reported to police and by whom. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii). Dekaj testified inconsistently that
18 he reported the attack to police, his cousin Mark reported
19 it, that Mark’s son found a “guy” to report it, and that
20 either Mark or another cousin Augustine reported it.
21 The agency further reasonably relied on inconsistencies
22 between Dekaj’s testimony that he was attacked in April 2012
3
1 right before the local elections, in which he was “actively
2 involved,” and his father’s and fellow victim’s written
3 statements that the incident occurred shortly before the
4 local elections in May of 2011. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii). Dekaj insisted that his father and
6 fellow victim had provided the wrong year. The IJ was not
7 compelled to credit Dekaj’s explanation that both his friend
8 and father made identical errors in their written statements.
9 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
10 petitioner must do more than offer a plausible explanation
11 for his inconsistent statements to secure relief; he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit his testimony.” (internal quotation marks
14 omitted)); see also Mei Chai Ye v. U.S. Dep’t of Justice, 489
15 F.3d 517, 524 (2d Cir. 2007) (“[T]his court has . . . firmly
16 embraced the commonsensical notion that striking similarities
17 between affidavits are an indication that the statements are
18 canned.” (internal quotation marks omitted)).
19 The agency also reasonably relied on Dekaj’s inconsistent
20 evidence regarding the statements his alleged attackers made
21 during the incident. See 8 U.S.C. § 1158(b)(1)(B)(iii).
22 Although “trivial differences in the wording of statements
4
1 describing the same event are not sufficient to create
2 inconsistencies,” Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.
3 2019), the only similarity between Dekaj’s and his fellow
4 victim’s descriptions is that their attackers mentioned the
5 name of a local parliamentary member. Otherwise, Dekaj and
6 the other victim stated that the attackers mentioned the
7 parliamentary member in different contexts and called them
8 different insulting names. The other victim also claimed
9 that the attackers threatened to kill them during the attack
10 and mentioned other Democratic Party members by name, while
11 Dekaj did not make such assertions.
12 Having questioned Dekaj’s credibility, the agency
13 reasonably relied further on his failure to rehabilitate his
14 testimony with reliable corroborating evidence. “An
15 applicant’s failure to corroborate his or her testimony may
16 bear on credibility, because the absence of corroboration in
17 general makes an applicant unable to rehabilitate testimony
18 that has already been called into question.” Biao Yang v.
19 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As the agency
20 found, several letters Dekaj submitted were inconsistent with
21 his testimony. Alternatively, the IJ did not err in
22 declining to credit the unsworn letters from Dekaj’s father,
5
1 friend, and cousin because the authors were not made available
2 for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 334
3 (2d Cir. 2013) (deferring to agency’s decision to afford
4 little weight to relative’s letter from China because it was
5 unsworn and from an interested witness). As with Dekaj’s
6 testimony, a hospital report and letter from the District
7 Deputy of the Democratic Party were inconsistent with Dekaj’s
8 father’s and fellow victim’s letters regarding the year of
9 the attack. And, aside from his father’s letter, which the
10 agency reasonably declined to credit, Dekaj did not submit
11 any evidence corroborating his claim that he was arrested and
12 beaten in detention in 2013.
13 Given Dekaj’s inconsistent evidence and insufficient
14 corroboration, the agency’s adverse credibility determination
15 is supported by substantial evidence. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii). That determination is dispositive of
17 asylum, withholding of removal, and CAT relief because all
18 three claims were based on the same factual predicate. See
19 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, the pending motion
22 for a stay of removal in this petition is DISMISSED as moot,
6
1 and the pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate Procedure
3 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe
6 Clerk of Court
7