10-4153-ag
Delija v. Holder
                                                                                BIA
                                                                          Laforest, IJ
                                                                        A088 367 168
                    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.

     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 27th day of April, two thousand twelve.

PRESENT:
         ROSEMARY S. POOLER,
         PETER W. HALL,
         GERARD E. LYNCH,
              Circuit Judges.
_______________________________________

BESNIK DELIJA,
         Petitioner,

                   v.                                   10-4153-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________

FOR PETITIONER:                Andrew P. Johnson, New York, New
                               York.

FOR RESPONDENT:                Tony West, Assistant Attorney
                               General; Jennifer Williams, Senior
                               Litigation Counsel; Dara S. Smith,
                       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 Besnik Delija, a native of the former

Yugoslavia and a citizen of Kosovo, seeks review of the

September 30, 2010, decision of the BIA affirming the

November 26, 2008, decision of Immigration Judge (“IJ”)

Brigitte Laforest denying his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Besnik Delija, No. A088 367

168 (B.I.A. Sept. 30, 2010), aff’g No. A088 367 168 (Immig.

Ct. N.Y. City Nov. 26, 2008).       We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Delija argues that the IJ’s adverse credibility

determination was not supported by substantial evidence.

Although the government does not raise the issue, it appears

that Delija failed to challenge before the BIA any of the

specific findings supporting that determination.       However,

                                2
we need not decide whether Delija’s arguments were properly

exhausted before the BIA, see Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007), because the

IJ’s adverse credibility determination was adequately

supported by the cumulative weight of the various

inconsistencies in the record.

    “[W]hen the BIA issues an opinion that fully adopts the

IJ’s decision, we review the IJ’s decision.”       Ming Xia Chen

v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).       We review the

factual findings of the IJ, including credibility findings,

for substantial evidence.   See Yanqin Weng v. Holder, 562

F.3d 510, 513 (2d Cir. 2009).       Because this case was filed

in 2007, we apply the REAL ID Act of 2005, Pub. L. No. 109-

13, 119 Stat. 231, 303 (2005). See Xiu Xia Lin v. Mukasey,

534 F.3d 162, 167 (2d Cir. 2008).       Under the Act, “an IJ may

rely on any inconsistency or omission in making an adverse

credibility determination as long as the totality of the

circumstances establishes that an asylum applicant is not

credible.”   Id. (internal quotation marks omitted).

    In finding Delija not credible, the IJ reasonably

relied on several inconsistencies in the record.       For

example, Delija stated at his border interview that he was

afraid to return to Kosovo because car thieves wanted to

                                3
kill him, but he testified before the IJ that he feared

returning to Kosovo because he had been beaten on two

occasions for fleeing Kosovo during the war.

    Delija also gave varying accounts of those beatings.

During his credible fear interview, he claimed that the

first beating occurred in June 2006 and that two cars forced

his car to stop and masked men dragged him out of his car

and kicked him, but he told the IJ that the incident

occurred in July, that only one car forced his car to stop,

and that he stepped out of the car himself.1   There were

similar inconsistencies in Delija’s account of the second

beating. In the credible fear interview, Delija said that

while he was working in the woods in September or October

masked men suddenly drove up, then hit him, held him upside

down, and broke his leg, and that as a result he spent three

days in the hospital.   He told the IJ, however, that the

second beating occurred in November, that the masked men

arrived on foot, that they tied him to a tree and attacked

his leg with a saw, and that as a result he spent six days

in the hospital.


      1
         Moreover, Delija stated that this incident
  occurred as he and his wife were driving home from dinner
  at a restaurant, while his family’s letters indicated
  that the incident occurred while they were driving home
  from lunch.
                              4
    While Delija offered explanations for some (although

not all) of these discrepancies, the IJ was not compelled to

accept them, and the cumulative weight of these

inconsistencies warranted the IJ in concluding that Delija’s

testimony was not credible. See 8 U.S.C. § 1252(b)(4)(B);

Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

Delija’s reliance on our holding in Secaida–Rosales v. INS,

331 F.3d 297, 308 (2d Cir. 2003) (“Inconsistencies of less

than substantial importance for which a plausible

explanation is offered cannot form the sole basis for an

adverse credibility finding.   This is especially so when the

inconsistencies . . . concern . . . matters collateral or

ancillary to the [applicant’s] claim.”) is unavailing,

because, as we have previously recognized, Secaida–Rosales

was abrogated by the REAL ID Act.   See Xiu Xia Lin, 534 F.3d

at 163-64.

    Accordingly, the IJ’s adverse credibility determination

was supported by substantial evidence.   That determination

provided an adequate basis for denying Delija’s asylum,

withholding of removal, and CAT claims because those claims

were all based on the same factual predicate.     See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).



                               5
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                              6
