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
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FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
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, 

, 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, 

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.”     

(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 

, 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,

, 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 

(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, 

, 152 (2d Cir. 2003), overruled on

other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 

, 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 

(deferring

“to an IJ’s credibility determination unless, from the


                                5
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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