Filed: Mar. 26, 2013
Latest Update: Mar. 28, 2017
Summary: 12-571 Hoxha v. Holder BIA Laforest, IJ A099 683 815 A099 683 816 A088 794 302 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 ELECTR
Summary: 12-571 Hoxha v. Holder BIA Laforest, IJ A099 683 815 A099 683 816 A088 794 302 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 ELECTRO..
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12-571
Hoxha v. Holder
BIA
Laforest, IJ
A099 683 815
A099 683 816
A088 794 302
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of March, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 BENERETA HOXHA, KRISTI HOXHA, GENT
14 HOXHA,
15 Petitioners,
16
17 v. 12-571
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Saul C. Brown, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Russell J.E.
29 Verby, Senior Litigation Counsel,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioners Benereta, Gent, and Kristi Hoxha, natives
10 and citizens of Albania, seek review of a January 12, 2012,
11 order of the BIA, affirming the July 28, 2010, decision of
12 Immigration Judge (“IJ”) Brigitte Laforest, denying their
13 applications for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re
15 Benereta Hoxha, Kristi Hoxha, Gent Hoxha, Nos. A099 683
16 815/816, A088 794 302 (B.I.A. Jan. 12, 2012), aff’g Nos.
17 A099 683 815/816, A088 794 302 (Immig. Ct. N.Y. City July
18 28, 2010). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 both the BIA’s and IJ’s opinions, including the portions of
22 the IJ’s decision not explicitly discussed by the BIA.
23 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
24 The applicable standards of review are well-established.
2
1 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2 F.3d 510, 513 (2d Cir. 2009). For applications like
3 Petitioners’, governed by the REAL ID Act of 2005, the
4 agency may, considering the totality of the circumstances,
5 base a credibility finding on the applicants’ demeanor, the
6 plausibility of their accounts, and inconsistencies in their
7 statements, without regard to whether those inconsistencies
8 go “to the heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
10 265 (B.I.A. 2007). Analyzed under the REAL ID Act, the
11 agency’s adverse credibility determinations are supported by
12 substantial evidence.
13 In finding Benereta not credible, the agency reasonably
14 relied on the Turkish entrance and exit stamps on her
15 passport, which contradicted her testimony that she was in
16 Albania at the time of her alleged rape. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii). Although Benereta testified that she
18 lent her passport to her sister because her sister closely
19 resembled her, did not have a passport, and needed to travel
20 to Turkey for medical reasons, the agency was not required
21 to credit her explanation. See Majidi v. Gonzales,
430 F.3d
22 77, 80-81 (2d Cir. 2005) (noting that the agency need not
23 credit an applicant’s explanations for inconsistent
3
1 testimony unless those explanations would compel a
2 reasonable fact-finder to do so). Indeed, while Petitioners
3 contend that Benereta provided a plausible explanation for
4 the presence of the stamps, we have held that “[a]
5 petitioner must do more than offer a plausible explanation
6 for his inconsistent statements to secure relief.” Id. at
7 80-81 (internal quotation and citation omitted). Nor did
8 the agency err in declining to give weight to Benereta’s
9 sister’s and relative’s letters because they were prepared
10 solely for Petitioners’ immigration proceedings after
11 Benereta’s attempt to conceal her passport stamps was
12 discovered. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
13 F.3d 315, 342 (2d Cir. 2006); see also Matter of H-L-H &
14 Z-Y-Z-, 25 I.& N. Dec. 209 (B.I.A. 2010), rev’d on other
15 grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d Cir.
16 2012).
17 The agency also reasonably determined that Gent was not
18 credible due to inconsistencies among his testimony,
19 application, and credible fear interview regarding whether
20 he was a member of the Democratic Party and had been
21 arrested in Albania. See 8 U.S.C. § 1158(b)(1)(B)(iii).
22 Although Gent testified that his former counsel advised him
23 to conceal this information during his credible fear
4
1 interview, the IJ was not required to credit his
2 explanation. See Majidi, 430 F.3d at 80-81. Indeed, the IJ
3 determined that Gent’s explanation made no sense because he
4 was being interviewed for the purpose of determining whether
5 he had a credible fear of persecution and did not
6 subsequently file a claim against his former counsel for
7 ineffective assistance. Moreover, while Petitioners argue
8 that Gent’s explanation was possible, as noted above, “the
9 degree of deference we must afford to the IJ’s credibility
10 findings” requires more. Majidi, 430 F.3d at 80. Given
11 these substantial inconsistencies, we conclude that the
12 agency’s credibility determinations are supported by
13 substantial evidence.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
5
