08-4619-ag
Prenqi v. Holder
BIA
Videla, IJ
A 097 479 957
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 20 th day of April, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 MARJETA PRENQI,
14 Petitioner,
15
16 v. 08-4619-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joshua E. Bardavid, New York, New
24 York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Michelle Gorden Latour,
3 Assistant Director; Kimberly A.
4 Burdge, Trial Attorney, Office of
5 Immigration Litigation, Civil
6 Division, Department of Justice,
7 Washington D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Marjeta Prenqi, a native of the former
14 Yugoslavia, seeks review of the September 5, 2008, order of
15 the BIA affirming the August 30, 2006, decision of
16 Immigration Judge (“IJ”) Gabriel C. Videla denying her
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Marjeta
19 Prenqi, No. A 097 479 957 (B.I.A. Sept. 5, 2008), aff’g No.
20 A 097 479 957 (Immig. Ct. N.Y. City Aug. 30, 2006). We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 Under the circumstances of this case, we review both
24 the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 432
25 F.3d 391, 394 (2d Cir. 2005) The applicable standards of
26 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
2
1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2 The IJ’s adverse credibility determination was
3 supported by substantial evidence. As a preliminary matter,
4 Prenqi does not challenge the IJ’s findings that: (1) her
5 inability to recall the number of meetings she attended in
6 Kosovo without repeated prompting from her attorney
7 undermined her credibility; (2) her statement in her asylum
8 application that “there were several attempts” to kidnap her
9 “by using opium” was inconsistent with her testimony that
10 she did not know of any such attempts; and (3) her testimony
11 was inconsistent with the country conditions evidence in the
12 record. Those findings therefore stand as valid bases for
13 the IJ’s adverse credibility determination. See Shunfu Li
14 v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
15 With respect to the findings Prenqi does challenge,
16 each was proper. The IJ did not err in failing to consider
17 the Dolan affidavit, which stated that Prenqi suffered from
18 post-traumatic stress disorder and depression. Although
19 Prenqi contends that she submitted the affidavit as an
20 explanation for her inability to testify coherently, she
21 never presented that explanation to the IJ, raising it for
22 the first time in her appeal to the BIA. At the time the IJ
3
1 rendered his oral decision, the affidavit was merely one of
2 several documents in the record, and the IJ was not required
3 to discuss it individually. See Jian Hui Shao v. Mukasey,
4 546 F.3d 138, 169 (2d Cir. 2008). Assuming, arguendo, that
5 Prenqi did in fact offer the affidavit to explain her
6 testimonial difficulties, the IJ was not required to credit
7 that explanation because the affidavit does not state that
8 Prenqi would have any difficulty speaking clearly, recalling
9 events accurately, or testifying consistently. See Majidi
10 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
11 the agency need not credit an applicant’s explanations for
12 inconsistent testimony unless those explanations would
13 compel a reasonable fact-finder to do so).
14 The IJ also did not err in finding that Prenqi’s
15 “unresponsive” testimony undermined her credibility because
16 it suggested that she “may not be testifying from actual
17 experience, [and] that she just basically memorized certain
18 information and she is intent on relating that information
19 regardless of the question.” In the Matter of Marjeta
20 Prenqi, No. A 097 479 957, at 12 (Immig. Ct. N.Y. City Aug.
21 30 2006). We accord particular deference to such
22 assessments of an applicant’s demeanor. See Tu Lin v.
23 Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006). In addition,
4
1 the IJ reasonably relied on a discrepancy between Prenqi’s
2 asylum application, which stated that she hid from potential
3 kidnapers at her uncle’s house, and her testimony that she
4 actually stayed at her cousin’s house as a basis for his
5 adverse credibility determination. Although Prenqi argues
6 that the inconsistency is too “minor and peripheral” to
7 reflect negatively on her credibility, the IJ did not err in
8 considering this inconsistency cumulatively with several
9 other omissions and inconsistencies in making his adverse
10 credibility determination. Id. at 402.
11 Ultimately, the IJ’s credibility determination was
12 supported by substantial evidence. See 8 U.S.C.
13 § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.
14 2007). Therefore, the IJ did not err in denying Prenqi’s
15 application for asylum and withholding of removal because
16 the only evidence that Prenqi would be persecuted or
17 tortured depended on her credibility. See Paul v. Gonzales,
18 444 F.3d 148, 156 (2d Cir. 2006). Prenqi also waived any
19 challenge to the IJ’s denial of her application for CAT
20 relief by not sufficiently arguing the issue in her brief.
21 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
22 n.7 (2d Cir. 2005).
23 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review, Prenqi’s pending
2 motion for a stay of removal in this petition is DISMISSED
3 as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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