13-4432
Rexho v. Holder
BIA
Christensen, IJ
A089 915 662/663/664
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
TO 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 12th day of March, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 AIDA REXHO, AKA AIDA META, NAZIF
14 REXHO, MEGI REXHO,
15 Petitioners,
16
17 v. 13-4432
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
1 FOR PETITIONERS: Sokol Braha, New York, New York;
2 Adrian Spirollari, Brooklyn, New York.
3
4 FOR RESPONDENT: Sheri R. Glaser, Trial Attorney,
5 Office of Immigration Litigation,
6 [Jamie M. Dowd, Senior Litigation
7 Counsel; Stuart F. Delery, Assistant
8 Attorney General, on the brief],
9 United States Department of Justice,
10 Washington D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioners, natives and citizens of Albania, seek
17 review of an October 24, 2013, decision of the BIA affirming
18 the October 21, 2011, decision of an Immigration Judge
19 (“IJ”), denying asylum, withholding of removal, and relief
20 pursuant to the Convention Against Torture (“CAT”). In re
21 Aida Rexho, Nazif Rexho, Megi Rexho, Nos. A089 915
22 662/663/664 (B.I.A. Oct. 24, 2013), aff’g Nos. A089 915
23 662/663/664 (Immig. Ct. N.Y.C. Oct. 21, 2011). We assume
24 the parties’ familiarity with the underlying facts and
25 procedural history in this case.
26 Under the circumstances of this case, we have reviewed
27 the IJ’s decision as modified by the BIA decision. See Xue
1 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
2 Cir. 2005). The applicable standards of review are well
3 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
4 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
5 For asylum applications like Petitioners’, governed by
6 the REAL ID Act of 2005, the agency may, “[c]onsidering the
7 totality of the circumstances,” base a credibility
8 determination on inconsistencies in the asylum applicant’s
9 statements and other record evidence “without regard to
10 whether” they go “to the heart of the applicant’s claim.” 8
11 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
12 credibility determination unless, from the totality of the
13 circumstances, it is plain that no reasonable fact-finder
14 could make such an adverse credibility ruling.” Xiu Xia Lin
15 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
16 Substantial evidence supports the agency’s adverse
17 credibility determinations.
18 First, the agency reasonably relied on Aida’s omission
19 from her asylum application of her later assertion that she
20 and her family were threatened and she was beaten, in part,
21 because of her husband Nazif’s ethnicity (and related
3
1 political activity). See id. at 166 n.3 (providing that for
2 purposes of analyzing a credibility determination, “[a]n
3 inconsistency and an omission are . . . functionally
4 equivalent”). The agency was not compelled to credit her
5 explanation that she only mentioned in her application
6 events that had happened to her. See Majidi v. Gonzales,
7 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that the agency
8 need not credit an applicant’s explanations for inconsistent
9 testimony unless those explanations would compel a
10 reasonable fact-finder to do so). She testified that she
11 was a victim of some of the ethnicity-based threats,
12 including an incident when two men wielded knives while
13 threatening to kill her and Nazif, and she testified that
14 her alleged beating was due, in part, to Nazif’s ethnicity.
15 The agency also reasonably relied on several additional
16 inconsistencies in the record. Aida’s asylum application
17 listed Nazif’s ethnicity as “Albanian,” while Nazif’s
18 application listed his ethnicity as “Cham.” Further, Aida
19 asserted that she was knocked unconscious after allegedly
20 being beaten, that she stayed overnight at a hospital, and
21 that she reported the beating to police approximately three
4
1 weeks after the attack. However, other record evidence
2 indicated inconsistently that she did not lose
3 consciousness, spend the night at the hospital, or report
4 her attack to police within three weeks. The agency was not
5 required to credit the explanations provided for these
6 inconsistencies. See Id.
7 Given the inconsistencies, the agency reasonably found
8 Petitioners not credible. That finding is dispositive of
9 asylum, withholding of removal, and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Because the
11 agency’s adverse credibility is dispositive of all forms of
12 relief, we do not reach the agency’s alternative basis for
13 denying Nazif’s asylum claim – his failure to timely file
14 his asylum application.
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
5