18-3406
Smajlaj v. Garland
BIA
Poctzer, IJ
A208 752 127/128
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 10th day of March, two thousand twenty-two.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 ALTIN SMAJLAJ, LUIZA SMAJLAJ,
14 Petitioner,
15
16 v. 18-3406
17 NAC
18 MERRICK B. GARLAND
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
22
23 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo
24 & Masi, PC, Bohemia, NY.
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Merrick B. Garland is automatically
substituted as Respondent.
1
2 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
3 General; Shelley R. Goad,
4 Assistant Director; Jennifer A.
5 Singer, Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, DC.
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 Petitioners Altin Smajlaj and Luiza Smajlaj, natives and
14 citizens of Albania, seek review of an October 16, 2018
15 decision of the BIA affirming a July 19, 2017 decision of an
16 Immigration Judge (“IJ”) denying Smajlaj’s application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Altin Smajlaj, No.
19 A 208 752 127/128 (B.I.A. Oct. 16, 2018), aff’g No. A 208 752
20 127/128 (Immig. Ct. N.Y. City July 19, 2017). We assume the
21 parties’ familiarity with the underlying facts and procedural
22 history.
23 We have considered both the IJ’s and the BIA’s opinions
24 “for the sake of completeness.” Wangchuck v. Dep’t of
25 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
3 (2d Cir. 2018). “Considering the totality of the
4 circumstances, and all relevant factors, a trier of fact may
5 base a credibility determination on the demeanor, candor, or
6 responsiveness of the applicant . . . , the consistency
7 between the applicant’s or witness’s written and oral
8 statements . . . , the internal consistency of each such
9 statement, the consistency of such statements with other
10 evidence of record . . . without regard to whether an
11 inconsistency, inaccuracy, or falsehood goes to the heart of
12 the applicant’s claim, or any other relevant factor.”
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 credibility determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder
16 could make such an adverse credibility ruling.” Xiu Xia Lin
17 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
18 Gao, 891 F.3d at 76-77.
19 Applying these standards, we conclude that substantial
20 evidence supports the adverse credibility determination. 2
2The adverse credibility determination is dispositive and we find
no need to distinguish between Altin’s and Luiza’s status as
3
1 First, the agency reasonably relied on omissions from Altin’s
2 and Luiza’s statements at their initial credible fear
3 interviews. The records of the interviews were sufficiently
4 reliable. See Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d
5 Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d 169, 179–80
6 (2d Cir. 2004). Both Altin and Luiza failed to mention at
7 the interviews that the individual they feared was a police
8 officer despite the asylum officer’s questions about their
9 fear of public officials and ability to seek help from the
10 Albanian police. Neither provided a compelling explanation
11 when confronted with the inconsistency. See Majidi v.
12 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
13 do more than offer a plausible explanation for his
14 inconsistent statements to secure relief; he must demonstrate
15 that a reasonable fact-finder would be compelled to credit
16 his testimony.” (internal quotations omitted)).
17 Next, the agency reasonably relied on the cumulative
18 effect of several inconsistencies between Altin’s and Luiza’s
19 testimony. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103,
20 106–07 (2d Cir. 2006). For example, Altin and Luiza did not
applicant and derivative beneficiary.
4
1 testify consistently as to whether they received threats in
2 person or only by mail. They also provided inconsistent
3 testimony as to the trigger for their departure from their
4 home: Altin described their pursuer’s brother’s release from
5 jail as a motivating factor, while Luiza stated that she was
6 not sure if any of their pursuer’s family was incarcerated.
7 Finally, the absence of reliable documentary evidence
8 undermined the Smajlajs’ credibility. See Biao Yang v.
9 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
10 failure to corroborate his or her testimony may bear on
11 credibility, because the absence of corroboration in general
12 makes an applicant unable to rehabilitate testimony that has
13 already been called into question.”); see also Y.C. v. Holder,
14 741 F.3d 324, 332, 334 (2d Cir. 2013) (deferring to agency on
15 weight of documentary evidence and upholding BIA’s decision
16 not to credit letter from applicant’s spouse). While the
17 Smajlajs’ provided letters from village priest, the village
18 elder, and a friend, none of these letters addressed the
19 omissions and inconsistencies in the Smajlajs’ testimony.
20 The omissions, inconsistencies, and lack of reliable
21 corroboration provide substantial evidence in support of the
5
1 adverse credibility determination. See Xiu Xia Lin, 534 F.3d
2 at 167. That determination is dispositive of the Smajlajs’
3 claims for asylum, withholding of removal, and CAT relief
4 because all three claims are based on the same factual
5 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
6 Cir. 2006).
7 Finally, we find no abuse of discretion in the BIA’s
8 denial of the motion to remand. To warrant remand based on
9 ineffective assistance of counsel, an applicant must show
10 that counsel’s actions were deficient and caused
11 prejudice. See Debeatham v. Holder, 602 F.3d 481, 484-85 (2d
12 Cir. 2010). As the BIA explained, the alleged deficiencies
13 were not material to the adverse credibility determination
14 and thus did not affect the outcome of the proceedings. Id.
15 at 486.
16 For the foregoing reasons, the petition for review is
17 DENIED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
6