09-4014-ag
Xhafer-Mulaj v. Holder
BIA
Schoppert, IJ
A094 896 345
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 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 22 nd day of July, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges.
______________________________________
QENDRIM XHAFER-MULAJ,
Petitioner,
v. 09-4014-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Sam Gjoni, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michael P. Lindemann,
Assistant Director; Christopher C.
Fuller, Senior Litigation Counsel,
Civil Division; Caitlyn Walters, Law
Student Clerk; 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.
Qendrim Xhafer-Mulaj, a native of Yugoslavia and
citizen of Serbia, seeks review of an August 28, 2009, order
of the BIA affirming the December 18, 2007, decision of
Immigration Judge (“IJ”) Douglas B. Schoppert, which denied
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Qendrim Xhafer-Mulaj, No. A094 896 345 (BIA Aug. 28, 2009),
aff’g No. A094 896 345 (Immig. Ct. N.Y. City Dec. 18, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision including the portions not explicitly
discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
391, 394 (2d Cir. 2005). We review an IJ’s factual
findings, including adverse credibility determinations,
under the substantial evidence standard. Id.; see 8 U.S.C.
§ 1252(b)(4)(B). Under the REAL ID Act, which applies in
this case, “an IJ may rely on any inconsistency or omission
in making an adverse credibility determination as long as
the ‘totality of the circumstances’ establishes that an
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asylum applicant is not credible.” Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility determination. See id.; Yun-Zui Guan, 432 F.3d
at 394. In support of that determination, the IJ found
that: (1) although Xhafer-Mulaj stated in his asylum
application that only one man approached him on the street
and threatened him, he testified that two men approached
him; (2) although Xhafer-Mulaj stated in his asylum
application that he received threatening letters and phone
calls, he testified that he had not and denied including
that information in his application; and (3) Xhafer-Mulaj’s
testimony that Besnik Kastrati was killed by the police for
political reasons was contradicted by the U.S. State
Department Country Report for Serbia, which indicated that
he was killed because of a blood feud, and that the police
officer who killed him was convicted and sentenced to ten
years’ imprisonment.
Rather than challenge the IJ’s findings, Xhafer-Mulaj
argues before this Court that “he did not w[ai]ver during
his oral testimony regarding the one incident that presented
an inconsistency with the written affidavit he had submitted
to the court” and that he “was not aware of what was
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submitted in writing to the court.” As discussed above,
however, the IJ identified several inconsistencies in
Xhafer-Mulaj’s testimony. Moreover, at a hearing before the
IJ, Xhafer-Mulaj acknowledged his familiarity with the
contents of his asylum application and testified that his
statement was true and correct. Accordingly, the IJ’s
adverse credibility determination was supported by
substantial evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1252(b)(4)(B); see also Majidi v. Gonzales, 430 F.3d 77, 80-
81 (2d Cir. 2005)(“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.”)
(internal quotations marks omitted). Because Xhafer-Mulaj’s
claims were all based on the same factual predicate, the
agency’s denial of his application for asylum, withholding
of removal, and CAT relief was proper. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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
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