    13-3120 (L)
    Bujaj v. Lynch
                                                                                        BIA
                                                                                    Sichel, IJ
                                                                            A200 126 354/355

                          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 TO 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    1st day of May, two thousand fifteen.

    PRESENT:
             JOHN M. WALKER, JR.,
             BARRINGTON D. PARKER,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    KUJTIM BUJAJ, BUJAJ VJOLLCA, AKA
    VJOLICA BUJAJ,
             Petitioners,

                     v.                                              13-3120(L),
                                                                     14-819(Con)
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.1
    _____________________________________


    1
     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
    Loretta E. Lynch is automatically substituted for former Attorney General
    Eric H. Holder, Jr.
FOR PETITIONERS:           Michael P. DiRaimondo, Melville,
                           New York.

FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
                           Attorney General; Linda S. Wernery,
                           Assistant Director; Gerald M.
                           Alexander, Trial Attorney, Office of
                           Immigration Litigation, U.S.
                           Department of Justice, Washington,
                           D.C.

    UPON DUE CONSIDERATION of these petitions for review of two

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

    Petitioners Kujtim and Vjollca Bujaj, natives and citizens

of Albania, seek review of: (1) the August 2, 2013, decision

of the BIA affirming a September 7, 2011, decision of an

Immigration Judge (“IJ”) denying their applications for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”), In re Kujtim Bujaj, Vjollca Bujaj, Nos. A200

126 354/355 (B.I.A. Aug. 2, 2013), aff’g No. A200 126 354/355

(Immig. Ct. N.Y. City Sept. 7, 2011); and (2) the February 18,

2014, decision of the BIA denying their motion to reopen, In

re Kujtim Bujaj, Vjollca Bujaj, Nos. A200 126 354/355 (B.I.A.



                              2
Feb. 18, 2014).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

I.   Merits - Docket Number 13-3120(L)

     Under the circumstances of this case, we have reviewed both

the IJ’s and the BIA’s opinions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006).     The    applicable    standards   of    review   are   well

established.      8 U.S.C.     § 1252(b)(4)(B);   Xiu   Xia   Lin   v.

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)(per curiam).           The

agency may, “[c]onsidering the totality of the circumstances,”

base a credibility finding on inconsistencies in an asylum

applicant’s statements and other record evidence “without

regard to whether” they go “to the heart of the applicant’s

claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 163 n.2.       Substantial evidence supports the agency’s

determination that Petitioners were not credible.

     The agency reasonably relied on inconsistencies between

Petitioners’ testimony and their earlier sworn statements to

border officials and asylum officers.       See also Xiu Xia Lin,

534 F.3d at 165-67.    As an initial matter, the IJ did not err

in finding the typewritten records of Petitioners’ earlier
                                  3
sworn statements reliable.    See Ming Zhang v. Holder, 585 F.3d

715, 721-25 (2d Cir. 2009).   Petitioners’ statements were made

with the assistance of interpreters, they signed each page of

their recorded statements to border officials, and they were

read summaries of their accounts during their credible fear

interviews (at which Kujtim had counsel).     See id.

       As the IJ noted, in contrast with their asylum claims,

Petitioners told officials at their border interview that they

did not fear harm in Albania and that they came to the United

States to seek employment.     See Xiu Xia Lin, 534 F.3d at 166

n.3.    Furthermore, Kujtim’s account of his alleged beating in

September 2005 differed between his credible fear interview and

his merits hearing.    At his interview, he claimed that police

detained him in his village, walked him to an abandoned

building, and beat him.    However, he testified inconsistently

at his hearing that police forced him into a car and drove him

around for more than one hour before stopping at an abandoned

house to beat him.    Kujtim also made conflicting statements as

to whether his family picked him up from the abandoned house

or a stranger drove him home.


                                4
    Vjollca’s accounts of the harm she suffered were also

inconsistent between her credible fear interview and her merits

hearing.   She asserted at her interview that police thwarted

individuals who attempted to kidnap her, while she testified

at her hearing that an unidentified man scared away her

attackers.     Petitioners    failed   to    provide   compelling

explanations for their discrepant statements.     See Ming Zhang,

585 F.3d at 720; see also Majidi v. Gonzales, 430 F.3d 77, 80

(2d Cir. 2005).

    Having   questioned    Petitioners’     credibility,   the    IJ

reasonably relied further on their failure to provide credible

evidence to rehabilitate their testimony.       See Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).      As the IJ noted,

Kujtim’s medical report and letters from the Democratic Party

and the Association of the Former Politically Persecuted People

of Albania were inconsistent with his testimony regarding the

September 2005 incident.

    Given the inconsistency and corroboration findings, the

agency’s adverse credibility determination is supported by

substantial evidence, and is dispositive of Petitioners’ claims

for asylum, withholding of removal, and CAT relief.              See
                               5
8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).       Accordingly, we do not consider the

agency’s alternative basis for denying relief.

II. Motion to Reopen – Docket Number 14-819(Con)

      We review the BIA’s denial of Petitioners’ motion to reopen

for   abuse    of   discretion,   and   any   factual   findings   for

substantial evidence.      Jian Hui Shao v. Mukasey, 546 F.3d 138,

168-69 (2d Cir. 2008).      “A motion to reopen proceedings shall

not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c)(1).      Failure to offer such evidence is,

therefore, a proper ground on which the BIA may deny a motion

to reopen, as is the movant’s failure to establish a prima facie

case for the underlying substantive relief sought.          I.N.S. v.

Abudu, 485 U.S. 94, 104-05 (1988).        The BIA did not abuse its

discretion in denying Petitioners’ motion to reopen.

      First,   it   had   previously    considered   and   reasonably

rejected on appeal Kujtim’s assertion that he was nervous and

had difficulty understanding the interpreter at his credible

fear interview because that interview was conducted with his
                                   6
counsel present and Kujtim agreed with the contents of the

written    summary   of   the   interview   (which   included   his

inconsistent statements).       See Ming Zhang, 585 F.3d at 722,

725.    Moreover, although Kujtim was informed that he could stop

the interview if he did not understand the proceedings, he did

not do so.

       The BIA also did not err in finding previously available

a psychological report related to Kujtim’s purported memory

issues.    See 8 C.F.R. § 1003.2(c)(1).     Alternatively, the BIA

reasonably concluded that the report was not material as it did

not rebut the underlying adverse credibility determination.

See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005).      Indeed, the

author of the report explicitly stated that his conclusion that

Kujtim had poor short term memory concerned his memory only at

the time of the evaluation in 2013, and thus, it did not explain

Kujtim’s inconsistent statements made in 2006.       Similarly, the

BIA did not abuse its discretion (or violate Petitioners’ due

process rights) in determining that evidence that the Socialist

Party was in power in Albania was immaterial because Petitioners

were not credible as to their assertion that Socialists had

targeted them on account of their political opinion.       See id.
                                  7
    For the foregoing reasons, the petitions for review are

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

that the Court previously granted in these petitions is VACATED,

and any pending motion for a stay of removal in these petitions

is DISMISSED as moot.    Any pending request for oral argument

in these petitions is DENIED in accordance with Federal Rule

of Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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