09-3305-ag
Jakaj v. Holder
BIA
Rohan, IJ
A094 046 302
A094 048 713
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 4 th day of March, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 ARDIANA JAKAJ, KOL JAKAJ,
14 Petitioners,
15
16 v. 09-3305-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael P. Diraimondo, Melville, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Anthony P. Nicastro, Senior
28 Litigation Counsel, D. Nicholas
29 Harling, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioners Ardiana and Kol Jakaj, both natives and
6 citizens of Albania, seek review of a July 27, 2009, order
7 of the BIA, affirming the October 23, 2007, decision of
8 Immigration Judge (“IJ”) Patrician A. Rohan, denying their
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jakaj,
11 Nos. A094 046 302, A094 048 713 (B.I.A. July 27, 2009),
12 aff’g Nos. A094 046 302, A094 048 713 (Immig. Ct. N.Y. City
13 Oct. 23, 2007). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we review both
16 the BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales,
17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
18 of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. As the IJ found, Kol’s testimony
23 conflicted with both the record and Ardiana’s testimony.
24 First, Kol testified that he never received documents
25 confirming his 2003 arrest, but Ardiana testified that they
2
1 did receive such documents. Second, with regard to the
2 medical report, Kol testified that they did not receive any
3 documents from the doctor who treated them after their
4 release from detention. When questioned about two letters
5 from their doctor in the record, Kol explained that after he
6 and his sister arrived in the United States, his father
7 contacted the doctor to write the letters. However, the
8 letters were dated the day of the alleged treatment, before
9 Petitioners arrived in the United States. Moreover, Ardiana
10 testified that they received the documents days after the
11 treatment. The agency was entitled to rely on these
12 discrepancies in finding Petitioners not credible. See 8
13 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
14 F.3d 162, 167 (2d Cir. 2008). Furthermore, the IJ reasonably
15 declined to credit Petitioners’ explanations for the
16 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
17 (2d Cir. 2005).
18 Because Petitioners fail to challenge the adverse
19 inference that the IJ drew from their failure to provide
20 sufficient evidence corroborating their claims, we deem that
21 argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d
22 540, 541 n.1, 545 n.7 (2d Cir. 2005). Accordingly,
23 substantial evidence supports the agency’s adverse
24 credibility determination. See 8 U.S.C
25 § 1158(b)(1)(B)(iii).
3
1 Finally, the BIA did not err in declining to consider
2 the supplemental report that Petitioners submitted on
3 appeal, as it was not in the record before the IJ and the
4 BIA may “not engage in factfinding in the course of deciding
5 appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); Xian Tuan Ye v. DHS,
6 446 F.3d 289, 296 (2d Cir. 2006).
7 Because the only evidence of a threat to Petitioners’
8 lives or freedom depended upon their credibility, the
9 adverse credibility determination in this case necessarily
10 precludes success on their claims for asylum, withholding of
11 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
12 148, 156 (2d Cir. 2006). This Court need not reach the IJ’s
13 alternative findings that Petitioners failed to meet their
14 burden of proof irrespective of their credibility.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
21 Federal Rule of Appellate Procedure 34(a)(2), and Second
22 Circuit Local Rule 34.1(b).
23
24 FOR THE COURT:
25 Catherine O’Hagan Wolfe, Clerk
26
27
4