     17-3690
     Pepaj v. Barr
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A206 140 284

                          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.

 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 16th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MIKEL PEPAJ,
14            Petitioner,
15
16                   v.                                          17-3690
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Michael P. DiRaimondo, Melville,
24                                    NY.
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Shelley R. Goad,
28                                    Assistant Director; Carmel A.
29                                    Morgan, Trial Attorney, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    Washington, DC.
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 Mikel Pepaj, a native and citizen of Albania,

6    seeks review of the BIA’s affirmance of an Immigration Judge’s

7    (“IJ”) denial of Pepaj’s application for asylum, withholding

8    of removal, and relief under the Convention Against Torture

9    (“CAT”).       In re Mikel Pepaj, No. A 206 140 284 (B.I.A. Oct.

10   16, 2017), aff’g No. A 206 140 284 (Immig. Ct. N.Y. City Feb.

11   7, 2017).

12          Under    the   circumstances,    we    have   reviewed    the   IJ’s

13   decision as modified by the BIA.             See Xue Hong Yang v. U.S.

14   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying

15   well    established      standards     of    review.       See   8 U.S.C.

16   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

17   (2d    Cir.    2018).     In   so   doing,   we   assume   the   parties’

18   familiarity with the underlying facts and procedural history

19   of this case, which we reference only as necessary to explain

20   our decision to deny the petition.

21          “[A] trier of fact may base a credibility determination

22   on the demeanor, candor, or responsiveness of the applicant
                                  2
1    or witness, the inherent plausibility of the applicant’s or

2    witness’s        account,     [and]   the    consistency   between     the

3    applicant’s or witness’s written and oral statements . . .

4    without regard to whether an inconsistency, inaccuracy, or

5    falsehood goes to the heart of the applicant’s

6    claim    .   .    .      .”     8   U.S.C.   § 1158(b)(1)(B)(iii).    “We

7    defer . . . to an IJ’s credibility determination unless, from

8    the totality of the circumstances, it is plain that no

9    reasonable fact-finder could make such an adverse credibility

10   ruling.”     Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008);

11   accord   Hong      Fei   Gao,   891   F.3d   at   76.   Applying     these

12   standards, we conclude that substantial evidence supports the

13   agency’s credibility determination.

14       First, the agency did not err in relying on Pepaj’s

15   credible fear interview to assess his credibility.            An IJ may

16   rely on statements made at a credible fear interview where

17   the interview record “displays the hallmarks of reliability”

18   and “represents a sufficiently accurate record of the alien’s

19   statements to merit consideration.” Ming Zhang v. Holder, 585

20   F.3d 715, 721, 724 (2d Cir. 2009) (internal quotation marks

21   omitted).        The record here bears sufficient indicia of such

22   reliability: the asylum officer’s notes were typewritten,
                                 3
1    Pepaj   initialed   each      page,   the   officer     asked   open-ended

2    questions, and Pepaj expressed no difficulty understanding

3    the   questions    or   the    interpreter.     See     Ramsameachire    v.

4    Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004) (finding airport

5    interview record had “hallmarks of accuracy and reliability,

6    as it [wa]s typewritten, signed by [the petitioner], and

7    initialed by h[er] on each page”).

8          Second, in determining that Pepaj was not credible, the

9    IJ reasonably relied on Pepaj’s contradictory descriptions of

10   his 2013 attack as contained in his interview statements,

11   asylum application, and hearing testimony.              See Xian Tuan Ye

12   v. Dep’t of Homeland Sec., 447 F.3d 289, 295 (2d Cir. 2006)

13   (holding that “material inconsistency in an aspect of [the]

14   story that served as an example of the very persecution from

15   which [petitioner] sought asylum . . .            afforded substantial

16   evidence    to    support     the     adverse   credibility       finding”

17   (internal   citation     and     quotation      marks    omitted)).     For

18   example, at the hearing, Pepaj testified that his attackers

19   “threw” a steel pipe at him, while, at his earlier interview,

20   he had stated that attackers “beat” him with a stick. Pepaj’s

21   only explanation for the discrepancy was that “somehow the

22   steel pipe caught [his] hand.”              Certified Administrative
                                4
1    Record at 108.      The IJ was not required to accept Pepaj’s

2    explanation.     See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

3    Cir. 2005)(“A petitioner must do more than offer a plausible

4    explanation for his inconsistent statements to secure relief;

5    he must demonstrate that a reasonable fact-finder would be

6    compelled to credit his testimony.” (internal quotation marks

7    omitted)).

8        Pepaj now attempts to reconcile his varying accounts by

9    stating that he “expected” his attackers to beat him. Pet.

10   Br. at 20-21.    However, he did not offer this explanation to

11   the BIA, and we will not attempt to reconcile his inconsistent

12   statements after the fact. See Lin Zhong v. U.S. Dep’t of

13   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (limiting review to

14   grounds relied on by BIA).

15       Additional inconsistencies further support the agency’s

16   adverse credibility determination, notably Pepaj’s

17   inconsistent accounts of whether his friends faced

18   political persecution for their involvement with the

19   Democratic Party.    See 8 U.S.C. § 1158(b)(1)(B)(iii).

20   Pepaj’s application reported that, in 2013, his friends

21   were “harassed by Socialist thugs” for their political

22   activities and “attacked by a group of Socialists who
                                   5
1    screamed and called them traitors.”       Certified Record on

2    Appeal at 218. But Pepaj testified otherwise at the

3    hearing, stating that his “close friends” had no problems,

4    “but some friends I knew . . . [had] problems during the

5    election, but I don’t know exactly what kind of problems

6    they had.”    Certified Record on Appeal at 118.         When

7    pressed, Pepaj could not identify a single incident

8    regarding these other friends, and, when confronted with

9    his asylum application, Pepaj responded only that he did

10   not remember what he wrote in that application.          Pepaj’s

11   lack of knowledge, and even repudiation, of central facts

12   supporting his asylum application undermined his

13   credibility.

14       Finally,     Pepaj’s    documentary       evidence     does    not

15   corroborate     his   alleged   attacks      or   rehabilitate     his

16   credibility.    See Biao Yang v. Gonzales, 496 F.3d 268, 273

17   (2d Cir. 2007) (“An applicant’s failure to corroborate his or

18   her testimony may bear on credibility, because the absence of

19   corroboration    in   general   makes   an   applicant    unable   to

20   rehabilitate testimony that has already been called into

21   question.”).

22
                                      6
1           Pepaj testified that after the 2009 attack, his mother

2    saw him bleeding and, later that day, his father asked him if

3    he “knew the people that did this.”                He also testified that

4    he showed his parents his bruised finger on the day of the

5    2013 attack.         But his parents’ letter does not mention

6    physical       attacks,    and     neither   do    the    letters     from   the

7    Democratic Party in Albania or the “Association of the Ex

8    Political[ly] Persecuted.” See Hong Fei Gao, 891 F.3d at 78

9    (stating that witness’s “silence on particular facts depends

10   on whether those facts are ones the witness would reasonably

11   have    been    expected     to    disclose”).         Furthermore,     at   the

12   hearing, Pepaj seemed unsure of the contents of those letters,

13   and testified that he did not know why the information was

14   omitted.       In   short,      the   documentary        evidence    does    not

15   corroborate Pepaj’s account of physical attacks.

16          Accordingly,       the     “totality       of     the   circumstances”

17   supports the adverse credibility determination.                     See Xiu Xia

18   Lin, 534 F.3d at 167.             That determination is dispositive of

19   asylum, withholding of removal, and CAT relief because all

20   three claims are based on the same factual predicate.                        See

21   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).


                                            7
1        For the foregoing reasons, the petition for review is

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

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe,
11                                 Clerk of Court




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