10–4747-ag (L)
Berisha v. Holder
BIA
Vomacka, IJ
A099 938 817
A099 938 818
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 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 20th day of August, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 BURIM BERISHA, ARTE BERISHA,
14 Petitioners,
15
16 v. 10-4747-ag (L);
17 11-3020-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
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1 FOR PETITIONERS: Sokol Braha, Esq., New York, New
2 York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; Thomas B. Fatouros, Senior
6 Litigation Counsel; James A. Hurley,
7 Attorney, Office of Immigration
8 Litigation, United States Department
9 of Justice, Washington D.C.
10
11 UPON DUE CONSIDERATION of these petitions for review of
12 Board of Immigration Appeals (“BIA”) decisions, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petitions for review
14 are DENIED.
15 Petitioners Burim Berisha (“Berisha”) and Arte
16 Berisha,1 both citizens of Kosovo, seek review of an October
17 25, 2010 decision of the BIA affirming the August 10, 2009
18 decision of Immigration Judge (“IJ”) Alan Vomacka, denying
19 asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Burim Berisha,
21 Arte Berisha, Nos. A099 938 817/818 (B.I.A. Oct. 25, 2010),
22 aff’g Nos. A099 938 817/818 (Immig. Ct. N.Y.C. Aug. 10,
23 2009). Petitioners also seek review of a July 7, 2011
24 decision of the BIA denying reopening. In re Burim Berisha,
25 Arte Berisha Nos. A099 938 817/818 (B.I.A. July 7, 2011).
1
Because Arte Berisha’s petition is derivative of her
husband’s application, our reason for denying Burum Berisha
review necessarily extends to her as well.
2
1 We assume the parties’ familiarity with the underlying facts
2 and procedural history.
3 Under the circumstances of this case, we have reviewed
4 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
5 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
6 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
7 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
8 Cir. 2008).
9 I. October 2010 Decision
10 For asylum applications, like Berisha’s, governed by
11 the REAL ID Act, the agency may, “[c]onsidering the totality
12 of the circumstances, . . . base a credibility finding on
13 . . . the consistency between the applicant’s or witness’s
14 written or oral statements, . . . the internal consistency
15 of each such statement, [and] the consistency of such
16 statements with other evidence of record, . . . without
17 regard to whether an inconsistency . . . goes to the heart
18 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
19 Xiu Xia Lin, 534 F.3d at 165-66.
20 Substantial evidence supports the agency’s adverse
21 credibility finding as to Berisha. The agency relied
22 primarily on two inconsistencies in the record. First,
3
1 Berisha stated in his asylum application that he found the
2 windows of his car shattered, but but later testified that,
3 in addition to the broken windows, the car had flat tires
4 and scratches. Berisha sought to explain this
5 inconsistency by stating that the word “destroyed,”
6 purportedly used in his asylum application, implicitly
7 encompassed the flat tires. But the agency reasonably
8 declined to credit this explanation, as the application did
9 not in fact use the word “destroyed.” See Majidi v.
10 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
11 the agency need not credit an applicant’s explanations for
12 inconsistent testimony unless those explanations would
13 compel a reasonable fact-finder to do so). Second, although
14 Berisha testified that he received medical treatment for
15 five days following his March 2006 assault, neither his
16 asylum application nor his father’s affidavit makes any
17 reference to medical treatment. The agency was not required
18 to credit Berisha’s explanations, i.e., that he thought
19 information concerning his treatment was covered by the
20 medical report and that the oversight was the result of
21 preparer’s error, because the medical report was obtained in
22 February 2008, well after the submission of the asylum
23 application in May 2007. See id.
4
1 Having adversely assessed Berisha’s credibility, the
2 agency did not err by declining to credit Berisha’s
3 documentation of his membership in the Democratic League of
4 Kosovo (“LDK”) because the documents were not issued
5 contemporaneously with his asserted membership in the LDK
6 and were obtained for the purpose of his immigration
7 hearing. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
8 F.3d 315, 342 (2d Cir. 2006) (the weight afforded to the
9 applicant’s evidence in proceedings lies largely within the
10 discretion of the IJ).
11 Given the noted inconsistencies, omissions, and lack of
12 corroboration, the agency’s adverse credibility
13 determination is supported by substantial evidence and
14 provided an adequate basis for denying asylum (including
15 humanitarian asylum), withholding of removal, and CAT
16 relief. See Xiu Xia Lin, 534 F.3d at 165-66; Paul v.
17 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
18 II. July 2011 Decision
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion, remaining mindful of the Supreme
21 Court’s admonition that motions to reopen are “disfavored.”
22 Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006)
23 (internal quotation marks omitted).
5
1 In support of his motion to reopen, Berisha provided
2 documentary evidence demonstrating that the LDK was no
3 longer part of the ruling coalition government in Kosovo and
4 argued that he had an increased fear of persecution because
5 Kosovo was governed by the Democratic Party of Kosovo
6 (“PDK”), whose members had previously harmed him. The BIA
7 did not abuse its discretion in declining to reopen in light
8 of the underlying adverse credibility determination which
9 was based in part on the questionable veracity of Berisha’s
10 LDK party membership documentation. See Qin Wen Zheng v.
11 Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007) (concluding
12 that the BIA did not abuse its discretion in denying a
13 motion to reopen supported by what was alleged to be
14 previously unavailable evidence regarding changed country
15 conditions, because there had been a previous adverse
16 credibility finding in the underlying asylum hearing).
17 For the foregoing reasons, the petitions for review are
18 DENIED. As we have completed our review, any stays of
19 removal that the Court previously granted in these petitions
20 are VACATED, and any pending motions for stays of removal in
21 these petitions are DISMISSED as moot. Any pending requests
22 for oral argument in these petitions are DENIED in
6
1 accordance with Federal Rule of Appellate Procedure 34(a)(2)
2 and Second Circuit Local Rule 34.1(b).
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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7