Filed: Oct. 19, 2010
Latest Update: Feb. 21, 2020
Summary: 09-1335-ag Markaj v. Holder BIA Straus, IJ A094 802 825 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
Summary: 09-1335-ag Markaj v. Holder BIA Straus, IJ A094 802 825 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 ..
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09-1335-ag
Markaj v. Holder
BIA
Straus, IJ
A094 802 825
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 19th day of October, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 VIKTOR MARKAJ,
14 Petitioner,
15
16 v. 09-1335-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Fatos Koleci, Milford, Connecticut.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Daniel E. Goldman, Senior
27 Litigation Counsel; Eric W.
28 Marsteller, Trial Attorney, Office
29 of Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Viktor Markaj, a native and citizen of
6 Serbia, seeks review of a March 2, 2009, order of the BIA
7 affirming the April 26, 2007, decision of Immigration Judge
8 (“IJ”) Michael W. Straus, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Viktor Markaj,
11 No. A094 802 825 (B.I.A. Mar. 2, 2009), aff’g No. A094 802
12 825 (Immig. Ct. Hartford Apr. 26, 2007). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
20 66 (2d Cir. 2008).
21 Substantial evidence supports the IJ’s adverse
22 credibility determination. As the IJ found, Markaj omitted
2
1 during his credible fear interview and from his asylum
2 application his claim raised at his hearing that he was
3 harmed because he was a member of the Democratic League of
4 Kosovo (“LDK”), stating instead that the harm he suffered
5 was based on his engagement to a Serbian woman and his
6 refusal to join the Kosovo Liberation Army during the 1999
7 war. Markaj’s omission of his LDK membership as a basis for
8 his claim of past persecution and well-founded fear of
9 future persecution was sufficiently dramatic to undermine
10 his credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
11 also Xiu Xia Lin, 534 F.3d at 166-67 n.3 (noting that
12 inconsistencies and omissions are “functionally
13 equivalent”). Furthermore, the IJ reasonably declined to
14 credit Markaj’s explanation that his answers at his credible
15 fear interview had to be brief because he was repeatedly
16 asked at that interview about the basis for his fear of
17 persecution. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
18 Cir. 2005) (emphasizing that the agency need not credit an
19 applicant’s explanations for inconsistent testimony unless
20 those explanations would compel a reasonable fact-finder to
21 do so). Moreover, Markaj’s argument failed to explain the
22 omission of this claim from his asylum application.
3
1 Because the IJ reasonably found Markaj not credible,
2 the IJ did not err in relying on the absence of country
3 conditions evidence corroborating his claim that he was
4 targeted as an LDK member. See Biao Yang v. Gonzales, 496
5 F.3d 268, 273 (2d Cir. 2007). Furthermore, contrary to
6 Markaj’s argument, the IJ reasonably gave diminished weight
7 to his individualized corroborating evidence, including both
8 a medical letter and his identity documents. See Xiao Ji
9 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
10 2006) (finding that the weight afforded to the applicant’s
11 evidence in immigration proceedings lies largely within the
12 discretion of the agency).
13 Accordingly, considering the totality of the
14 circumstances and all relevant factors, the IJ’s adverse
15 credibility determination was supported by substantial
16 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). Because the
17 IJ reasonably concluded that Markaj was not credible as to
18 his claims of past persecution and a well-founded fear of
19 future persecution, the adverse credibility determination in
20 this case necessarily precludes success on his claim for
21 asylum, withholding of removal, and CAT relief, as those
22 claims were based on the same factual predicate. See Paul
23 v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
14
5
