11-2756-ag BIA
Pllana v. Holder Bain, IJ
A088 779 542
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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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
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PARTY CITING A SUMMARYORDER 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 9th day of August, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SAMI PLLANA,
Petitioner,
v. 11-2756-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gregory Marotta, Law Office of Gregory
Marotta, Vernon, New Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Russell J.E. Verby, Senior Litigation
Counsel ; Katharine E. Clark, 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 Sami Pllana, a native of Yugoslavia and a
citizen of Kosovo, seeks review of a June 21, 2011, decision
of the BIA affirming the July 9, 2009, decision of the
Immigration Judge (“IJ”) denying his application for asylum
and withholding of removal. In re Sami Pllana, No. A088 779
542 (B.I.A. June 21, 2011), aff’g No. A088 779 542 (Immig. Ct.
N.Y. City July 9, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
Because the BIA agreed with the IJ that Pllana was not
credible “and, without rejecting any of the IJ’s grounds for
decision, emphasize[d] particular aspects of [the IJ’s]
decision,” we have reviewed both the BIA’s and the IJ’s
opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). “We review the agency's factual findings,
including adverse credibility determinations, under the
substantial evidence standard, treating them as ‘conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Xiu Xia Lin v. Mukasey, 534 F.3d
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162, 165 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).
“Where the IJ’s adverse credibility finding is based on
specific examples of inconsistent statements or contradictory
evidence, a reviewing court will generally not be able to
conclude that a reasonable adjudicator was compelled to find
otherwise.” Id. at 166 (internal quotation marks and ellipsis
omitted). Because Pllana filed his asylum application in
2008, the REAL ID Act applies. See REAL ID Act of 2005, Div.
B of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005) (codified
at 8 U.S.C. § 1158(b)(1)(B)(iii)); In re S-B-, 24 I. & N. Dec.
42, 45 (BIA 2006).
Substantial evidence supports the agency’s determination
that Pllana did not testify credibly. The agency reasonably
relied on inconsistencies in the record. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67.
As the agency found, Pllana’s testimony that he called his
brother’s friend Mahmut Idrizi for the first time from San
Antonio conflicted with his testimony that he called Idrizi
for the first time from Laredo. Pllana argues that he
testified that the smugglers who brought him across the United
States-Mexico border called Idrizi while Pllana was on his way
from San Antonio to Laredo, and that he called Idrizi after he
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arrived in Laredo. The record, however, reflects that Pllana
did, in fact, testify that he, not the smugglers, called
Idrizi from San Antonio. Further, the agency reasonably noted
a conflict between Pllana’s and Idrizi’s testimony on the
subject of whether, prior to Pllana’s arrival in the United
States, Pllana’s brother and Idrizi ever discussed Pllana’s
difficulties in Kosovo and his travel to the United States.
Although Pllana identifies errors in the IJ’s other
inconsistency findings, those errors present no basis for
remand, as the BIA did not rely on the questionable findings
in dismissing Pllana’s appeal, and the inconsistencies
correctly identified by the IJ, in conjunction with the IJ’s
other ground for the determination, were sufficient to support
the adverse credibility finding. See Shunfu Li v. Mukasey,
529 F.3d 141, 150 (2d Cir. 2008) (finding that remand is
futile where the Court can confidently “predict that the
agency would reach the same decision absent the errors that
were made” (internal quotation marks omitted)); Xiu Xia Lin,
534 F.3d at 167 (holding that “an IJ may rely on any
inconsistency . . . in making an adverse credibility
determination as long as the ‘totality of the circumstances’”
supports the determination).
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The agency’s adverse credibility determination is further
supported by its reasonable conclusion that Pllana’s testimony
was insufficiently detailed. Where an applicant gives “spare”
testimony, the fact-finder may “fairly wonder whether the
testimony is fabricated,” and “may wish to probe for
incidental details, seeking to draw out inconsistencies that
would support a finding of lack of credibility.” Jin Shui Qiu
v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled on
other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
F.3d 296, 305 (2d Cir. 2007). Here, the agency reasonably
concluded that Pllana’s testimony was nonresponsive and lacked
details regarding Pllana’s travel to the United States as well
as his decision to join the Democratic League of Kosovo
(“LDK”). Specifically, the IJ correctly noted that Pllana’s
testimony, even in response to further questions from the IJ,
contained no details regarding how he met the Mexican
smugglers who brought him to the United States. Given the
inconsistencies and spare and nonresponsive testimony
identified by the agency, substantial evidence supports the
agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167 (deferring
“to an IJ’s credibility determination unless, from the
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totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling”).
Finally, although the agency’s adverse credibility
finding is dispositive, substantial evidence also support’s
the agency’s conclusion that the background evidence provided
by Pllana did not support his claim that he has a well-founded
fear of persecution in Kosovo because of his membership in the
LDK. The U.S. Department of State report on which Pllana
relies describes only election manipulation and
irregularities; it does not indicate that LDK members face
violence or other mistreatment in Kosovo.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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