15-2939
Rrukaj v. Sessions
BIA
Cheng, IJ
A201 295 158
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of April, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 KLISMAN RRUKAJ,
14 Petitioner,
15
16 v. 15-2939
17 NAC
18
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL*,
21
22 Respondent.
23 _____________________________________
24
25 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
26 General Jefferson B. Sessions III is automatically substituted for
27 former Attorney General Loretta E. Lynch as Respondent.
28
29
1 FOR PETITIONER: Joshua Bardavid, New York, New York.
2
3 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
4 Assistant Attorney General; Holly M.
5 Smith, Senior Litigation Counsel;
6 Juria L. Jones, Trial Attorney;
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review is
14 DENIED.
15 Petitioner Klisman Rrukaj, a native and citizen of Albania,
16 seeks review of an August 21, 2015, decision of the BIA affirming
17 a November 24, 2014, decision of an Immigration Judge (“IJ”)
18 denying Rrukaj’s application for asylum, withholding of
19 removal, and relief under the Convention Against Torture
20 (“CAT”). In re Klisman Rrukaj, No. A201 295 158 (B.I.A. Aug.
21 21, 2015), aff’g No. A201 295 158 (Immig. Ct. N.Y. City Nov.
22 24, 2014). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Under the circumstances of this case, we have reviewed both
25 the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432
26 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
2
1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
3 (reviewing adverse credibility determination for substantial
4 evidence). The agency may, “[c]onsidering the totality of the
5 circumstances,” base an adverse credibility ruling on
6 inconsistencies between an asylum applicant’s testimony and
7 other record evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); see
8 also Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an
9 IJ’s credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder could
11 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
12 at 167.
13 Substantial evidence supports the agency’s determination
14 that Rrukaj was not credible. The agency reasonably based its
15 credibility ruling on three discrepancies between Rrukaj’s
16 testimony and the record evidence. First, Rrukaj’s testimony
17 that his sister Xhoana could not testify because she lived in
18 Michigan conflicted with his asylum application listing her
19 current location as New York. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii). Second, his testimony that he was
21 treated at Shkoder Hospital after being attacked in 2010
3
1 contradicted the medical report he submitted, which was
2 authored by a doctor from Kelmend Commune Health Center. Id.
3 Third, Rrukaj told the asylum officer at his credible fear
4 interview that neither he nor any of his family members were
5 involved in politics, but his asylum application and testimony
6 focused on his father’s involvement with political opposition
7 parties, which was a central aspect of his claim. See Ming
8 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). The agency
9 reasonably rejected Rrukaj’s explanations for these
10 discrepancies. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
11 2005).
12 In this Court, Rrukaj does not challenge these
13 inconsistency findings, but alleges for the first time that the
14 agency improperly overlooked a declaration from his parents
15 which rehabilitates his testimony and requires remand. We
16 decline to consider this issue because Rrukaj failed to exhaust
17 it before the agency. Lin Zhong v. U.S. Dep’t of Justice, 480
18 F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed
19 issue exhaustion is mandatory); Foster v. INS, 376 F.3d 75, 78
20 (2d Cir. 2004) (issues must generally be raised before the BIA
21 in order to be preserved for judicial review).
4
1 The IJ reasonably concluded that Rrukaj’s corroborating
2 evidence did not rehabilitate his inconsistent testimony,
3 especially because he did not offer affidavits or testimony from
4 his sisters in the United States or submit country conditions
5 evidence regarding whether individuals in Albania are targeted
6 on account of their family members’ political activities. Biao
7 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
8 Given the multiple inconsistencies between Rrukaj’s
9 testimony and the record evidence and his lack of rehabilitative
10 corroborating evidence, the totality of the circumstances
11 supports the agency’s credibility finding. Xiu Xia Lin, 534
12 F.3d at 167; Biao Yang, 496 F.3d at 273. Because Rrukaj’s
13 claims for asylum, withholding of removal, and CAT relief were
14 based on the same factual predicate, the adverse credibility
15 determination is dispositive of all three forms of relief.
16 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
5
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b)
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk
6