Zhabjaku v. Holder

08-3112-ag Zhabjaku v. Holder BIA Vomacka, IJ A096 018 143 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 25th day of February,two thousand eleven. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 PETER W. HALL, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _______________________________________ 13 14 GEZIM ZHABJAKU, 15 Petitioner, 16 17 v. 08-3112-ag 18 NAC 19 ERIC H. HOLDER, JR., U.S. ATTORNEY 20 GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Theodore N. Cox, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Lyle D. Jentzer, Senior 28 Litigation Counsel; Zoe J. Heller, 29 Civil Division, Office of 30 Immigration Litigation, U.S. 31 Department of Justice, Washington 32 D.C. 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 DISMISSED in part and DENIED in part. 5 Petitioner Gezim Zhabjaku, a native and citizen of 6 Albania, seeks review of the June 11, 2008, decision of the 7 BIA denying his motion to reopen and the February 14, 2005, 8 decision of the BIA affirming the December 5, 2003, decision 9 of Immigration Judge (“IJ”) Alan A. Vomacka denying his 10 application for asylum, withholding of removal, and CAT 11 relief. In re Gezim Zhabjaku, No. A096 018 143 (B.I.A. June 12 11, 2008); In re Gezim Zhabjaku, No. A096 018 143 (B.I.A. 13 Feb. 14, 2005), aff’g No. A096 018 143 (Immig. Ct. N.Y.C. 14 Dec. 5, 2003). We assume the parties’ familiarity with the 15 underlying facts and procedural history in this case. 16 As an initial matter, Zhabjaku’s challenges to the 17 BIA’s denial of his motion to reopen based on his 18 eligibility to adjust status are moot because his 19 applications for adjustment of status and a waiver of 20 inadmissibility have been adjudicated and denied. His 21 petition for review is dismissed to that extent. See Church 22 of Scientology of Cal. v. United States, 506 U.S. 9, 12 2 1 (1992) (“[I]f an event occurs while a case is pending on 2 appeal that makes it impossible for the court to grant ‘any 3 effectual relief whatever’ to a prevailing party, the appeal 4 must be dismissed.”) 5 Under the circumstances of this case, we review the 6 IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 7 489 F.3d 517, 523 (2d Cir. 2007). The applicable standards 8 of review are well-established. See 8 U.S.C. 9 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 10 (2d Cir. 2009). 11 Substantial evidence supports the IJ’s adverse 12 credibility determination. The IJ reasonably relied on 13 several inconsistencies in the record that went to the heart 14 of Zhabjaku’s claim. See Majidi v. Gonzales, 430 F.3d 77, 15 79-81 (2d Cir. 2005). For example, at his airport and 16 credible fear interviews, Zhabjaku explicitly stated that he 17 had never been arrested, but at his merits hearing he 18 testified that he had been arrested and beaten several 19 times. See id. 20 Further, Zhabjaku claimed in his asylum application 21 that he and his family were among the first members of the 22 Democratic Party in the early 1990s, but he testified that 3 1 he and his father did not join the Party until 1996. The 2 agency was not compelled to credit Zhabjaku’s explanation 3 that he was still relatively young at the time he joined the 4 Party; he did not explain why he did not join the youth wing 5 of the Party or why his father did not join earlier. In 6 addition, the IJ reasonably relied on the fact that Zhabjaku 7 stated in his asylum application that he supported Barit 8 Borici, the Legality Party candidate, in the 2000 municipal 9 elections, whereas Zhabjaku testified that he supported 10 Astrit Bushati, the Democratic Party candidate in that 11 election. The agency was not compelled to credit Zhabjaku’s 12 explanation that this was due to a typographical or 13 translation error. See Id. at 80-81. 14 In addition, the IJ reasonably found that Zhabjaku’s 15 failure to provide corroborating evidence supported an 16 adverse credibility determination. See Biao Yang v. 17 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Specifically, 18 the IJ reasonably noted the absence of any statement from 19 Zhabjaku’s family members (including his father, who was 20 supposedly involved in Democratic Party political 21 activities), and Zhabjaku’s failure to present any medical 22 records to corroborate his testimony that he received 23 medical treatment. See id. 4 1 Zhabjaku argues that the IJ engaged in speculation in 2 making certain additional adverse credibility findings. 3 However, we can confidently predict that the IJ would have 4 reached the same decision in any event because of the 5 overwhelming inconsistencies in the record supporting the 6 IJ’s ultimate adverse credibility determination. See Diallo 7 v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d Cir. 8 2008). Because the agency’s adverse credibility 9 determination was supported by substantial evidence, it did 10 not err in relying on that determination to deny Zhabjaku’s 11 applications for asylum, withholding of removal, and CAT 12 relief, all of which claims were based on the same factual 13 predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d 14 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 15 520, 523 (2d Cir. 2005). 16 For the foregoing reasons, the petition for review is 17 DISMISSED in part and DENIED in part. As we have completed 18 our review, any stay of removal that the Court previously 19 granted in this petition is VACATED, and any pending motion 20 for a stay of removal in this petition is DISMISSED as moot. 21 22 5 1 Any pending request for oral argument in this petition is 2 DENIED in accordance with Federal Rule of Appellate 3 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b). 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 6