10-4153-ag
Delija v. Holder
BIA
Laforest, IJ
A088 367 168
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
BESNIK DELIJA,
Petitioner,
v. 10-4153-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Andrew P. Johnson, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer Williams, Senior
Litigation Counsel; Dara S. Smith,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Besnik Delija, a native of the former
Yugoslavia and a citizen of Kosovo, seeks review of the
September 30, 2010, decision of the BIA affirming the
November 26, 2008, decision of Immigration Judge (“IJ”)
Brigitte Laforest denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Besnik Delija, No. A088 367
168 (B.I.A. Sept. 30, 2010), aff’g No. A088 367 168 (Immig.
Ct. N.Y. City Nov. 26, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Delija argues that the IJ’s adverse credibility
determination was not supported by substantial evidence.
Although the government does not raise the issue, it appears
that Delija failed to challenge before the BIA any of the
specific findings supporting that determination. However,
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we need not decide whether Delija’s arguments were properly
exhausted before the BIA, see Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007), because the
IJ’s adverse credibility determination was adequately
supported by the cumulative weight of the various
inconsistencies in the record.
“[W]hen the BIA issues an opinion that fully adopts the
IJ’s decision, we review the IJ’s decision.” Ming Xia Chen
v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). We review the
factual findings of the IJ, including credibility findings,
for substantial evidence. See Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009). Because this case was filed
in 2007, we apply the REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231, 303 (2005). See Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008). Under the Act, “an IJ may
rely on any inconsistency or omission in making an adverse
credibility determination as long as the totality of the
circumstances establishes that an asylum applicant is not
credible.” Id. (internal quotation marks omitted).
In finding Delija not credible, the IJ reasonably
relied on several inconsistencies in the record. For
example, Delija stated at his border interview that he was
afraid to return to Kosovo because car thieves wanted to
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kill him, but he testified before the IJ that he feared
returning to Kosovo because he had been beaten on two
occasions for fleeing Kosovo during the war.
Delija also gave varying accounts of those beatings.
During his credible fear interview, he claimed that the
first beating occurred in June 2006 and that two cars forced
his car to stop and masked men dragged him out of his car
and kicked him, but he told the IJ that the incident
occurred in July, that only one car forced his car to stop,
and that he stepped out of the car himself.1 There were
similar inconsistencies in Delija’s account of the second
beating. In the credible fear interview, Delija said that
while he was working in the woods in September or October
masked men suddenly drove up, then hit him, held him upside
down, and broke his leg, and that as a result he spent three
days in the hospital. He told the IJ, however, that the
second beating occurred in November, that the masked men
arrived on foot, that they tied him to a tree and attacked
his leg with a saw, and that as a result he spent six days
in the hospital.
1
Moreover, Delija stated that this incident
occurred as he and his wife were driving home from dinner
at a restaurant, while his family’s letters indicated
that the incident occurred while they were driving home
from lunch.
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While Delija offered explanations for some (although
not all) of these discrepancies, the IJ was not compelled to
accept them, and the cumulative weight of these
inconsistencies warranted the IJ in concluding that Delija’s
testimony was not credible. See 8 U.S.C. § 1252(b)(4)(B);
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Delija’s reliance on our holding in Secaida–Rosales v. INS,
331 F.3d 297, 308 (2d Cir. 2003) (“Inconsistencies of less
than substantial importance for which a plausible
explanation is offered cannot form the sole basis for an
adverse credibility finding. This is especially so when the
inconsistencies . . . concern . . . matters collateral or
ancillary to the [applicant’s] claim.”) is unavailing,
because, as we have previously recognized, Secaida–Rosales
was abrogated by the REAL ID Act. See Xiu Xia Lin, 534 F.3d
at 163-64.
Accordingly, the IJ’s adverse credibility determination
was supported by substantial evidence. That determination
provided an adequate basis for denying Delija’s asylum,
withholding of removal, and CAT claims because those claims
were all based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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