Filed: Feb. 01, 2011
Latest Update: Feb. 21, 2020
Summary: 10-508-ag Nilaj v. Holder BIA Nelson, IJ A093 409 785 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 N
Summary: 10-508-ag Nilaj v. Holder BIA Nelson, IJ A093 409 785 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 NO..
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10-508-ag
Nilaj v. Holder
BIA
Nelson, IJ
A093 409 785
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1 st day of February, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 MANDI NILAJ,
15 Petitioner,
16
17 v. 10-508-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Michael P. DiRaimondo, Melville, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Blair T. O’Connor,
29 Assistant Director; John B. Holt,
30 Trial Attorney, Office of
31 Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED, that the petition for review
7 is DENIED.
8 Mandi Nilaj, a native and citizen of Albania, seeks
9 review of a January 19, 2010 order of the BIA affirming the
10 March 21, 2008 decision of Immigration Judge (“IJ”) Barbara
11 A. Nelson, denying his application for asylum, withholding
12 of removal, and relief under the Convention Against Torture
13 (“CAT”). In re Mandi Nilaj, No. A093 409 785 (B.I.A. Jan.
14 19, 2010), aff’g No. A093 409 785 (Immig. Ct. N.Y. City Mar.
15 21, 2008). We assume the parties’ familiarity with the
16 underlying facts and procedural history of this case.
17 As an initial matter, although Nilaj challenges the
18 denial of relief in “asylum-only” proceedings, as opposed to
19 an actual removal order, we nonetheless have jurisdiction
20 under 8 U.S.C. § 1252(a)(1) because the denial of relief in
21 these circumstances is the functional equivalent of a
22 removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d
23 Cir. 2006). Where the BIA “agrees with the IJ’s conclusion
24 that a petitioner is not credible and . . . emphasizes
2
1 particular aspects of that decision,” we review “both the
2 BIA’s and IJ’s opinions–or more precisely, we review the
3 IJ’s decision including the portions not explicitly
4 discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d
5 391, 394 (2d Cir. 2005). The applicable standard of review
6 is well-established. See 8 U.S.C. § 1252(b)(4); see also Xiu
7 Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per
8 curiam).
9 We find no error in the agency’s reliance on the
10 discrepancies between Nilaj’s testimony and his asylum
11 application in finding him not credible. For asylum
12 applications governed by the REAL ID Act, the agency may, in
13 light of the totality of the circumstances, base a
14 credibility finding on an asylum applicant’s “demeanor,
15 candor, or responsiveness,” the plausibility of his or her
16 account, and inconsistencies in his or her statements,
17 without regard to whether they go “to the heart of the
18 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
19
Lin, 534 F.3d at 167. Here, the IJ reasonably determined
20 that the inconsistency between Nilaj’s testimony that his
21 first arrest occurred in April 2005, and his asylum
22 application, which stated that the arrest occurred in
23 November 2005, undermined Nilaj’s credibility, especially
3
1 considering that Nilaj amended his application twice and
2 affirmed that the information in his application was true
3 and correct. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
4 534 F.3d at 167. Additionally, the IJ reasonably found
5 Nilaj’s testimony regarding his actions immediately
6 following his alleged beating to be implausible and
7 inconsistent. See Wensheng Yan v. Mukasey,
509 F.3d 63, 67
8 (2d Cir. 2007); Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d
9 Cir. 2007). The IJ also considered and reasonably rejected
10 the explanations Nilaj offered for these discrepancies. See
11 Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
12 Moreover, the IJ reasonably concluded that Nilaj’s
13 failure to provide adequate corroboration for his claim
14 further undermined his already questionable credibility.
15 See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007).
16 As to the corroborating evidence Nilaj did submit, we defer
17 to the IJ’s determination that this evidence was of little
18 corroborative value because his medical record was suspect
19 and the letter from his former employer omitted any mention
20 of Nilaj’s problems with the Democratic Party . See Xiao Ji
21 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
22 2006) (explaining that the weight afforded to the
23 applicant’s evidence in immigration proceedings lies largely
4
1 within the discretion of the IJ).
2 Finally, because substantial evidence supports the
3 agency’s adverse credibility determination, and because the
4 only evidence of a threat to Nilaj’s life or freedom
5 depended upon his credibility, the adverse credibility
6 determination in this case necessarily precludes the success
7 of Nilaj’s withholding of removal and CAT claims. See Paul
8 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
9 v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
5
