Berisha v. Holder

10-2787-ag
Berisha v. Holder
BIA
Nelson, IJ
A095 862 069
A095 862 070
A029 757 879
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 17th day of August, two thousand eleven.

PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_________________________________________

FLORINDA BERISHA, AMBRA TOMA,
FLORIDI TOMA,
Petitioners,

v. 10-2787-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________

FOR PETITIONERS: Russell R. Abrutyn, Marshal E. Hyman
& Associates, PC, Troy, Michigan.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; John B. Holt,
Trial 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.

Florinda Berisha and her children, Ambra Toma and

Floridi Toma, natives and citizens of Albania, seek review

of a June 30, 2010 order of the BIA affirming the December

2, 2003 decision of Immigration Judge (“IJ”) Barbara A.

Nelson, which denied their application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”), as well as Ambra and Floridi Toma’s

motion to reopen. In re Berisha, Nos. A095 862 069/A095 862

070/A029 757 879 (B.I.A. June 30, 2010), aff’g Nos. A095 862

069/A095 862 070/A029 757 879 (Immig. Ct. N.Y.C. Dec. 2,

2003). 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 as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

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BIA’s factual findings for substantial evidence, treating

those findings as conclusive unless a reasonable adjudicator

would be compelled to conclude to the contrary, and we

review questions of law de novo. See 8 U.S.C.

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

(2d Cir. 2009).

I. Berisha’s Application for Relief

Substantial evidence supports the agency’s adverse

credibility determination in this case. See Shi Jie Ge v.

Holder, 588 F.3d 90, 93-94 (2d Cir. 2009). The agency

reasonably considered inconsistencies among Berisha’s asylum

application, testimony, and submitted evidence.

Specifically, Berisha’s application stated that she was

threatened and beaten after being terminated from her job,

but she testified that she received threats before being

fired and was not detained or beaten. Moreover, Berisha

testified that in 2001 a man who had previously threatened

her about her political activities hit her daughter with his

car; her asylum application, however, merely mentions that

her daughter was injured in a car accident because the

driver was speeding. In addition to these inconsistencies,

the medical report Berisha presented to corroborate the 2001

3
incident showed a 1994 hospitalization that pre-dated

Berisha’s daughter’s birth, and did not mention a car

accident. The agency reasonably determined that the

cumulative effect of these inconsistencies was substantial

when measured against the record as a whole. See Tu Lin v.

Gonzales, 446 F.3d 395, 402 (2d Cir. 2006); Secaida-Rosales

v. INS, 331 F.3d 297, 307-09 (2d Cir. 2003), abrogated in

part by 8 U.S.C. § 1158(b)(1)(B)(iii).1

In challenging the adverse credibility determination,

Berisha argues that the agency erred in refusing to allow

her brother to present corroborating testimony. Because, as

the government notes, Berisha failed to exhaust this issue

by raising it before the BIA, we do not consider it. See Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-22 (2d

Cir. 2007) (noting that judicially imposed exhaustion

requirement, while not jurisdictional, is mandatory); Foster

v. INS, 376 F.3d 75, 78 (2d Cir. 2004).

II. Motion to Reopen

The BIA did not abuse its discretion in denying Ambra

1
Although the Real ID Act abrogated in part our
holding in Secaida-Rosales for cases filed after May 11,
2005, Berisha's application was filed before this date.
See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008).
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and Floridi Toma’s motion to reopen because they failed to

establish prima facie eligibility for asylum relief. See

INS v. Abudu, 485 U.S. 94, 104 (1988) (holding that BIA may

deny motion to reopen if movant has not established prima

facie eligibility for underlying relief sought); accord Shao

v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008). The BIA

reasonably considered that the only alleged harm to Ambra

and Floridi was the 2001 incident in which Ambra was

purportedly hit by a car. As discussed above, the agency

reasonably found that Berisha’s account of this incident was

not credible. Moreover, even if Ambra was hit by a car, the

BIA reasonably concluded that there was insufficient

evidence that this incident was anything other than an

accident or that Ambra was targeted on account of a

protected ground. See 8 U.S.C. § 1101(a)(42). As result,

the agency did not abuse its discretion in determining that

Ambra and Floridi failed to establish a prima facie case of

persecution.

III. Conclusion

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in
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this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk