08-3347-ag
Xholi v. Holder
BIA
Laforest, IJ
A099 077 393
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
1 Rulings by summary order do not have precedential effect. Citation to
2 a summary order filed on or after January 1, 2007, is permitted and is
3 governed by Federal Rule of Appellate Procedure 32.1 and this court’s
4 Local Rule 32.1.1. When citing a summary order in a document filed
5 with this court, a party must cite either the Federal Appendix or an
6 electronic database (with the notation “summary order”). A party
7 citing a summary order must serve a copy of it on any party not
8 represented by counsel.
9
10 At a stated term of the United States Court of Appeals
11 for the Second Circuit, held at the Daniel Patrick Moynihan
12 United States Courthouse, 500 Pearl Street, in the City of
13 New York, on the 8 th day of February, two thousand ten.
14
15 PRESENT:
16 DENNIS JACOBS,
17 Chief Judge,
18 PIERRE N. LEVAL,
19 PETER W. HALL,
20 Circuit Judges.
21 _______________________________________
22
23 SHEHAT XHOLI,
24 Petitioner,
25
26 v. 08-3347-ag
27 NAC
28 ERIC H. HOLDER, Jr., U.S. ATTORNEY
29 GENERAL, 1
30 Respondent.
31 _______________________________________
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 PETITIONER: Andrew P. Johnson, New York, New
2 York.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General, Ernesto H. Molina,
6 Jr., Assistant Director, Dana M.
7 Camilleri, Trial Attorney, Office of
8 Immigration Litigation, Civil
9 Division, United States Department
10 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 Petitioner Shehat Xholi, a native and citizen of
6 Albania, seeks review of a July 19, 2008 order of the BIA
7 affirming the October 27, 2006 decision of Immigration Judge
8 (“IJ”) Brigitte Laforest, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Shehat Xholi, No.
11 A099 077 393 (B.I.A. July 19, 2008), aff’g No. A099 077 393
12 (Immig. Ct. N.Y. City Oct. 27, 2006). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 We review the agency’s factual findings, including
16 adverse credibility determinations, under the substantial
17 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
2
1 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We
2 review de novo questions of law and the application of law
3 to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d
4 99, 110 (2d Cir. 2008).
5 Because Xholi filed his asylum application after May
6 11, 2005, the amendments made to the Immigration and
7 Nationality Act by the REAL ID Act of 2005 apply to his
8 asylum application. See Pub. L. No. 109-13, § 101(h)(2),
9 119 Stat. 231, 305 (2005). For asylum applications governed
10 by the REAL ID Act, the agency may, considering the totality
11 of the circumstances, base a credibility finding on an
12 asylum applicant’s demeanor, the plausibility of his or her
13 account, and inconsistencies in his or her statements,
14 without regard to whether they go “to the heart of the
15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
16 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
17 As an initial matter, while Xholi’s brief to the BIA
18 mentioned the IJ's credibility determination, it presented
19 no specific challenge to the credibility-related findings,
20 asserting only that the IJ erroneously focused on “some
21 confusion or mistakes” rather than his claims of
22 persecution. See Lin Zhong v. U.S. Dep’t of Justice, 480
3
1 F.3d 104, 125 (2d Cir. 2007) (describing the issue
2 exhaustion requirement as “mandatory”). However, because
3 the BIA addressed some of the credibility issues not raised
4 by Xholi, those specific issues are considered exhausted,
5 and we may review them. See Xian Tuan Ye v. DHS, 446 F.3d
6 289, 296-97 (2d Cir. 2006); Waldron v. INS, 17 F.3d 511, 515
7 n.7 (2d Cir. 1994).
8 Substantial evidence supports the agency’s adverse
9 credibility determination. The IJ noted several
10 discrepancies in Xholi’s testimony: (1) Xholi testified at
11 his hearing that he was detained for 24 hours, but stated
12 during his asylum interview that he was detained for a
13 period of six hours, and (2) Xholi testified that Socialists
14 shot at him on October 20, 2004, but stated during an asylum
15 interview that the event took place in December 2004. Xholi
16 argues that the IJ erred in failing to consider his
17 explanation for the inconsistency regarding the length of
18 his detention – that he was “out of his mind.” However, the
19 IJ considered Xholi’s explanation, and was not compelled to
20 accept it. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
21 2005). Even if these inconsistencies were deemed minor, the
22 IJ was entitled to rely on their cumulative effect. Xiu Xia
4
1 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see also
2 Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
3 Accordingly, under the REAL ID Act, the IJ properly relied
4 on these inconsistencies in denying Xholi’s application for
5 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin,
6 534 F.3d at 167.
7 Furthermore, contrary to Xholi’s argument, the IJ was
8 not required to identify missing corroborating evidence and
9 to make a finding as to its availability before relying on a
10 lack of corroboration to support her credibility
11 determinations. See Biao Yang v. Gonzales, 496 F.3d 268,
12 273 (2d Cir. 2007) (Explaining that an applicant’s failure
13 to corroborate his or her testimony may bear on credibility,
14 either because the absence of particular corroborating
15 evidence is viewed as suspicious, or because the absence of
16 corroboration in general makes an applicant unable to
17 rehabilitate testimony that has already been called into
18 question).
19 These proper findings notwithstanding, the agency erred
20 in finding that Xholi lacked corroborating evidence from his
21 brother, as the record reveals that Xholi submitted a
22 declaration from his brother stating that he was attacked by
5
1 three people during a 2006 visit to Albania. However, even
2 assuming this finding was erroneous, remand would be futile
3 in this case because the IJ’s broader credibility
4 determination is amply supported by the record and we can
5 confidently predict based on the IJ’s non-erroneous
6 findings, that the agency would reach the same credibility
7 determination absent this error. See Xiao Ji Chen v. U.S.
8 Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006). The IJ
9 did not rely disproportionately on the lack of corroborating
10 evidence concerning the alleged attack against Xholi’s
11 brother; instead, the IJ appeared to reach the adverse
12 credibility determination based on the cumulative effect of
13 the other findings. See Xiu Xia Lin, 534 F.3d at 165-66.
14 Accordingly, the agency’s denial of Xholi’s asylum
15 application was proper.
16 Because the IJ’s adverse credibility finding was
17 supported by substantial evidence, we need not reach her
18 alternative findings that, even assuming credibility, Xholi
19 failed to sustain his burden of proof to establish past
20 persecution or a well-founded fear of future persecution.
21 Lastly, because Xholi’s claims for withholding of
22 removal and CAT relief share the same factual predicate as
6
1 his asylum claim, those claims necessarily fail. See Paul
2 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
3 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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