13-2312
Cupi v. Holder
BIA
Christensen, IJ
A200 748 096
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 11th day of July, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DORJAN CUPI,
14 Petitioner,
15
16 v. 13-2312
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Marotta, Vernon, New Jersey.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Mary Jane Candaux,
27 Assistant Director; Aimee J.
28 Carmichael, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 DENIED.
5 Dorjan Cupi, a native and citizen of Albania, seeks
6 review of a May 15, 2013, decision of the BIA affirming an
7 Immigration Judge’s (“IJ”) February 28, 2012, decision,
8 denying his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Dorjan Cupi, No. A200 748 096 (B.I.A. May 15, 2013),
11 aff’g No. A200 748 096 (Immig. Ct. N.Y. City Feb. 28, 2012).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well established. See 8
18 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009).
20 For applications such as Cupi’s, governed by the REAL
21 ID Act of 2005, the agency may, “considering the totality of
22 the circumstances,” base a credibility finding on the
23 applicant’s “demeanor, candor, or responsiveness,” the
2
1 plausibility of his account, and inconsistencies in his
2 statements, without regard to whether they go “to the heart
3 of the applicant’s claim.” See 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
5 167 (2d Cir. 2008) (per curiam). We “defer to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder
8 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
9 Here, the IJ reasonably based the adverse credibility
10 determination on Cupi’s inconsistent testimony,
11 inconsistencies between his testimony and documentary
12 evidence, and the implausibility of his evidence. As the
13 agency found, Cupi testified inconsistently regarding the
14 dates he and his father were arrested and whether he knew
15 that his friend was arrested with him. Contrary to a
16 membership card and a letter from the Socialist Party that
17 dated his party membership to 2006, Cupi testified that he
18 first joined in 2003. He also testified that his mother and
19 family doctor treated the injuries he received during his
20 arrests, contradicting his affidavit statement that his
21 girlfriend treated him in his dormitory.
22
3
1 Although Cupi offered explanations for these
2 inconsistencies, the IJ was not “‘compelled to credit’”
3 them. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
4 (internal citation omitted). Cupi asserted that his
5 membership card reflected the date it was issued, 2006, when
6 the Socialist Party began issuing cards. But the card
7 indicates that 2006 was the “date of [his] acceptance” and
8 Cupi’s sole witness testified that cards were issued as
9 early as 1991. When confronted with the inconsistency
10 regarding the treatment of his injuries, Cupi testified that
11 his girlfriend treated him before he went to his parents’
12 home or the hospital, but he did not explain why he did not
13 go directly to the hospital given the severity of his
14 injuries. The IJ reasonably relied on these unexplained
15 inconsistencies to support the adverse credibility
16 determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
17 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.
18 Moreover, the IJ reasonably found implausible both:
19 (1) Cupi’s affidavit, because it reported strikingly similar
20 events during and after his arrests using nearly identical
21 language; and (2) the omission of any mention in a letter
22 from the Socialist Party that Cupi was a member from 2003 to
4
1 2006, despite the fact that he testified that he was an
2 active local leader during that time. See Wensheng Yan v.
3 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (noting that the
4 reasons for an implausibility finding must be evident in the
5 record).
6 Given these inconsistencies and implausibilities, the
7 totality of the circumstances supports the agency’s adverse
8 credibility determination. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
10 Although Cupi submitted corroborating witness testimony,
11 letters, a membership card, and a hospital record, the IJ
12 reasonably found that evidence insufficient to establish his
13 eligibility for relief absent credible testimony because:
14 (1) his witness lacked personal knowledge of Cupi’s arrests;
15 (2) the card and hospital record were contradicted by Cupi’s
16 testimony; and (3) the letters’ authors were not available
17 for cross-examination. See Xiao Ji Chen v. U.S. Dep’t of
18 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight
19 accorded to documentary evidence lies largely within
20 agency’s discretion); see also Matter of H-L-H- & Z-Y-Z-, 25
21 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished
22 evidentiary weight to letters because the authors were not
23 subject to cross-examination), rev’d on other grounds by Hui
5
1 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). As the
2 only evidence of a threat to Cupi’s life or freedom, or
3 likelihood of torture, depended upon his credibility, the
4 adverse credibility determination in this case necessarily
5 precludes success on his claims for asylum, withholding of
6 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
7 148, 156 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
6