Rexho v. Holder

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