Spaho v. Holder

08-5596-ag
Spaho v. Holder
BIA
A 078 971 111

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.

At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1 st day of July, two thousand ten.

PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_________________________________________

ARMAND SPAHO,
Petitioner,

v. 08-5596-ag
NAC
ERIC H. HOLDER, JR., * UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________

FOR PETITIONER: Charles Christophe, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
 General; Richard M. Evans, Assistant
Director; Kevin J. Conway, Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

Armand Spaho, a native and citizen of Albania, seeks

review of a November 5, 2008 order of the BIA affirming the

March 13, 2007 decision of Immigration Judge (“IJ”) Alan A.

Vomacka denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Armand Spaho, No. A 078 971 111 (B.I.A. Nov.

5, 2008), aff’g No. A 078 971 111 (Immig. Ct. N.Y. City

March 13, 2007). We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

Under the circumstances of this case, we review both

the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

standards of review are well established. See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009).

2
 The IJ’s adverse credibility determination was

supported by substantial evidence. Contrary to Spaho’s

argument, the IJ reasonably found that his testimony,

describing a scar on his back, contradicted his later

testimony that the same scar was on his chest or on his

side, despite Spaho’s assertion that he simply used the

wrong terminology to describe its location. See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

the agency need not credit an applicant’s explanations for

inconsistent testimony unless those explanations would

compel a reasonable fact-finder to do so). Furthermore, the

IJ did not err in finding that Spaho’s testimony that his

father was discharged from the police department in January

1997 by the opposition party, conflicted with the

documentary evidence that his father was fired in September

1997 for absenteeism.

The IJ also reasonably found that Spaho’s inability to

remember why he was home during the 2000 bombing of his

house or details about the recent political history of

Albania, was inconsistent with his claim that he was a

political activist for democratic reform. See Jin Shui Qiu

v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (holding that

3
an IJ may base an adverse credibility determination on

“spare” testimony after probing for incidental details).

Although some of these inconsistencies, as Spaho argues, may

have been minor, the IJ did not err in relying on them in

conjunction with one another. See Tu Lin v. Gonzales, 446

F.3d 395, 402 (2d Cir. 2006) (“[T]he cumulative effect [of

inconsistencies ancillary to the claim] may nevertheless be

deemed consequential by the fact-finder.”).

Because substantial evidence supports the agency’s

adverse credibility determination, we need not consider its

alternate bases for denying relief. Furthermore, the

agency did not err in denying Spaho’s claims for withholding

of removal and CAT relief based on its adverse credibility

determination because all of Spaho’s claims were based on

the same factual predicate. See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

4