Filed: Aug. 20, 2012
Latest Update: Mar. 26, 2017
Summary: 11-4908 Tosic v. Holder BIA Balasquide, IJ A076 141 451 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: 11-4908 Tosic v. Holder BIA Balasquide, IJ A076 141 451 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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11-4908
Tosic v. Holder
BIA
Balasquide, IJ
A076 141 451
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 20 th day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 MIRSAD HAKO TOSIC,
14 Petitioner,
15
16 v. 11-4908
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Andrew P. Johnson, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; Zoe J.
29 Heller, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington D.C.
33
34
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Mirsad Hako Tosic, a native of Yugoslavia
6 and a citizen of Montenegro, seeks review of an October 28,
7 2011, decision of the BIA affirming the July 14, 2010,
8 decision of Immigration Judge (“IJ”) Javier Balasquide,
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Mirsad Hako Tosic, No. A076 141 451 (B.I.A. Oct. 28,
12 2011), aff’g No. A076 141 451 (Immig. Ct. N.Y. City July 14,
13 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case we have reviewed
16 both the IJ’s and BIA’s decisions “for the sake of
17 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
18 Cir. 2008) (per curiam) (internal quotation marks omitted).
19 The applicable standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B); see also Yun-Zui Guan v.
21 Gonzales,
432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
22 For asylum applications submitted prior to the passage of
23 the REAL ID Act, such as Tosic’s application, an adverse
2
1 credibility determination must be based on “specific, cogent
2 reasons” that “bear a legitimate nexus to the finding,” and
3 any discrepancy must be “substantial” when measured against
4 the record as a whole. See Secaida-Rosales v. INS, 331 F.3d
5 297, 307-08 (2d Cir. 2003) (internal quotation marks
6 omitted), superseded by the REAL ID Act as recognized in Xiu
7 Xia Lin v. Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008) (per
8 curiam). The agency’s adverse credibility determination is
9 supported by substantial evidence.
10 In finding Tosic not credible, the agency reasonably
11 relied on the inconsistency between Tosic’s assertion in his
12 asylum applications that he was ethnically Albanian and his
13 later testimony before the IJ that he was not ethnically
14 Albanian. See Zhou Yun Zhang v. U.S. INS,
386 F.3d 66, 74
15 (2d Cir. 2004) (noting that the Court generally will not
16 disturb adverse credibility determinations that are based on
17 “specific examples in the record of inconsistent statements
18 . . . about matters material to [an applicant’s] claim of
19 persecution”) (internal quotation marks omitted), overruled
20 in part on other grounds by Shi Liang Lin v. U.S. Dep’t of
21 Justice,
494 F.3d 296, 305 (2d Cir. 2007) (en banc). Tosic
22 argues that this inconsistency does not “reveal [anything]
23 about [his] credibility.” To the extent that Tosic is
3
1 asserting that his ethnicity bears no legitimate nexus to
2 the agency’s adverse credibility determination, his argument
3 is without merit because his alleged fear is based in part
4 on his wife’s Albanian ethnicity. Furthermore, the agency
5 was not required to credit Tosic’s explanation that the
6 inconsistency was caused by preparer’s error as that
7 explanation was undermined by his testimony that he claimed
8 to be ethnically Albanian because he was “afraid.” See
9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the
10 agency need not credit an applicant’s explanations for
11 inconsistent testimony unless those explanations would
12 compel a reasonable fact-finder to do so).
13 Having questioned Tosic’s credibility, the agency
14 reasonably relied further on his failure to provide
15 sufficient evidence to corroborate his claim, including any
16 evidence of his financial support of the independence of
17 Montenegro. See Biao Yang v. Gonzales,
496 F.3d 268, 273
18 (2d Cir. 2007) (per curiam) (an asylum applicant’s failure
19 to corroborate his testimony may bear on his credibility,
20 “because the absence of corroboration in general makes an
21 applicant unable to rehabilitate testimony that has already
22 been called into question”). The agency was not required to
23 credit Tosic’s explanations that he could not obtain
4
1 corroboration because he sent the money in cash and because
2 his mother was not educated. See Majidi, 430 F.3d at 80-81.
3 As the agency noted, Tosic’s mother supplied an affidavit
4 that did not mention Tosic’s support of the independence of
5 Montenegro, even though he alleged that his mother was
6 visited monthly by Serbian nationals who were seeking Tosic
7 because of that financial support.
8 In sum, the adverse credibility determination is
9 supported by substantial evidence, and the agency did not
10 err by denying asylum, withholding of removal, and CAT
11 relief because those claims all were based on the same
12 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
13 57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, the pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
5
