    17-3263
    Jamarjashvili v. Barr
                                                                                           BIA
                                                                                        Hom, IJ
                                                                               A087 665 046/047
                             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
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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
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         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 5th day of November, two thousand nineteen.

    PRESENT:
             DENNIS JACOBS,
             ROSEMARY S. POOLER,
             ROBERT D. SACK,
                  Circuit Judges.
    _____________________________________

    ELENE JAMARJASHVILI, LEVAN
    IRAKLIEVICH JALIASHVILI,
             Petitioners,

                        v.                                                17-3263
                                                                          NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.1
    _____________________________________

    FOR PETITIONERS:                          Isabella Mayzel, Springfield, NJ.

    FOR RESPONDENT:                           Chad A. Readler, Acting Assistant
                                              Attorney General; John S. Hogan,
                                              Assistant Director; Mona Maria
                                              Yousif, Trial Attorney, Office of
                                              Immigration Litigation, United

    1 The Clerk of the Court is directed to amend the caption as above.
                            States Department of Justice,
                            Washington, DC.

    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.

    Petitioners Elene Jamarjashvili and Levan Iraklievich

Jaliashvili, natives and citizens of Georgia, seek review

of a September 13, 2017, decision of the BIA affirming an

August 4, 2016, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”).       In re Elene

Jamarjashvili, Levan Iraklievich Jaliashvili, No. A 087 665

046/047 (B.I.A. Sept. 13, 2017), aff’g No. A 087 665

046/047 (Immig. Ct. N.Y. City Aug. 4, 2016).      We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    We have reviewed the IJ’s decision as modified and

supplemented by the BIA and limit our review to the agency’s

adverse credibility determination and the BIA’s ineffective

assistance   of   counsel   analysis.   See    Yun-Zui   Guan   v.

                               2
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005); Xue Hong Yang v.

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

Adverse Credibility Determination

    We review adverse credibility determinations under the

substantial evidence standard.   Hong Fei Gao v. Sessions, 891

F.3d 67, 76 (2d Cir. 2018).       The governing REAL ID Act

credibility standard provides as follows:

    Considering the totality of the circumstances, and
    all relevant factors, a trier of fact may base a
    credibility determination on the demeanor, candor,
    or responsiveness of the applicant or witness . . .
    the consistency between the applicant’s or witness’s
    written and oral statements . . . , the internal
    consistency of each such statement, the consistency
    of such statements with other evidence of record .
    . . , and any inaccuracies or falsehoods in such
    statements,   without    regard   to    whether   an
    inconsistency, inaccuracy, or falsehood goes to the
    heart of the applicant’s claim, or any other
    relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).   “We defer . . . to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”   Xiu Xia Lin

v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

Gao, 891 F.3d at 76.

    As an initial matter, the IJ did not err in failing to
                             3
consider     whether   Jamarjashvili        had   a    claim      of   religious

persecution.       The    IJ    acknowledged      the      sole   incident    in

question, in which the police allegedly pulled a crucifix off

the   wall   of   Jamarjashvili’s         home.   Jamarjashvili         did   not

explicitly apply for asylum on religious grounds and included

no    reference   to     this   one   incident        in   her    application.

Moreover, she testified that Catholics in Georgia “officially

are not persecuted” but rather are “subjected to smirking,

harassment, and are repressed.”             Because harassment, without

more, does not constitute persecution, Jamarjashvili failed

to state a claim of religious persecution on these facts.

See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

(2d Cir. 2006).

      Substantial evidence supports the agency’s

determination that Jamarjashvili was not credible as to her

claim of political persecution.             The agency reasonably

relied on discrepancies among Jamarjashvili’s testimony,

her application statement, and documentation of the sale of

her property.     See 8 U.S.C. § 1158(b)(1)(B)(iii).

Jamarjashvili testified that the state targeted her, in

part, by seizing her property in a sham transaction.
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However, a document she proffered shows that the property

in question was sold in an auction to offset a debt.          This

inconsistency, which undermined Jamarjashvili’s credibility

as to the alleged incidents of persecution and as to her

allegation that the government was targeting her, provides

substantial support for the adverse credibility

determination.    See Xian Tuan Ye v. Dep’t of Homeland Sec.,

446 F.3d 289, 295 (2d Cir. 2006) (holding that material

inconsistency relating to central aspect of asylum claim

provided substantial evidence for adverse credibility

determination).    The IJ was not required to credit

Jamarjashvili’s explanation that the event described in the

document was fabricated.     See Majidi v. Gonzales, 430 F.3d

77, 80 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for h[er] inconsistent

statements to secure relief; [s]he must demonstrate that a

reasonable fact-finder would be compelled to credit h[er]

testimony.” (quotation marks omitted)).

    The agency also properly relied on a discrepancy in how

Jamarjashvili    described   the   identities   of   her   July   2009

assailants.     She testified that undercover police officers
                                   5
in   civilian    clothing       attacked      her,     but   her   application

reported     that     “goons”     assaulted     her.         The   agency     was

permitted to rely on this inconsistency because Jamarjashvili

differentiated between the police and criminals, or “goons,”

throughout      her     written        statement,      and   the    difference

implicates the question of whether the alleged persecutors

were government actors.           See Xian Tuan Ye, 446 F.3d at 295;

Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006) (requiring

asylum applicant to show persecution by the government or by

actor(s) the government is “unable or unwilling to control”).

Because the IJ’s finding is “tethered to record evidence, and

there   is   nothing     else     in    the   record    from    which    a   firm

conviction of error could properly be derived,” we decline to

disturb the finding.        Wensheng Yan v. Mukasey, 509 F.3d 63,

67 (2d Cir. 2007).

     The     agency’s    demeanor        finding     bolsters      the   adverse

credibility determination.               8 U.S.C. § 1158(b)(1)(B)(iii)

(allowing IJ to rely on “demeanor, candor, or responsiveness

of the applicant”).       We generally “give particular deference”

to adverse credibility determinations “that are based on the

adjudicator’s observation of the applicant’s demeanor.”                        Li
                                         6
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

2006).    The   record   supports   the   IJ’s   conclusion   that

Jamarjashvili did not adequately explain how she was able to

identify police officers out of uniform.     She testified that

police officers in civilian clothes attacked her at least

five times.   When asked how she could identify them as police

officers, she failed to give a direct or responsive answer:

she reiterated that they were not dressed like police officers

and posited that their physical appearances and the way they

spoke set them apart.    Accordingly, the IJ reasonably viewed

her demeanor as undermining her credibility.       See Tu Lin v.

Gonzales, 446 F.3d 395, 400-01 (2d Cir. 2006) (“Evasiveness

is . . . one of the many outward signs a fact-finder may

consider in evaluating demeanor and in making an assessment

of credibility.”).

    Furthermore, the agency reasonably found that

Jamarjashvili failed to rehabilitate her testimony with

reliable corroborating evidence.    “An applicant’s failure

to corroborate . . . her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already
                               7
been called into question.”     Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007).       First, the IJ was permitted

to afford witness statements limited weight because their

authors were not available for cross examination.       See Y.C.

v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (reasoning

that courts “generally defer to the agency’s evaluation of

the weight to be afforded an applicant’s documentary

evidence” and deferring to agency’s decision to give

limited weight to letter from applicant’s spouse in China).

    Second, the IJ was permitted to give the letters from

the Ministry of Internal Affairs diminished weight.       Id. at

332. Jamarjashvili rightfully notes that 8 C.F.R. § 1287.6 is

not the sole method of authenticating a foreign document and

that it would be difficult to authenticate documents from her

alleged persecutor.   See Cao He Lin v. U.S. Dep’t of Justice,

428 F.3d 391, 404 (2d Cir. 2005). Her argument that the IJ

should have allowed her to “attempt to authenticate the

documents in some other fashion,” PB at 17, fails to persuade

given that she had more than six years to authenticate the

documents between the time she filed her application and her

merits hearing.   Even if fully credited, the documents are
                                8
not probative of her alleged persecution because they show

that she was instructed to report for questioning as a suspect

but do not specify what she was suspected of having done.

See Jin Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010)

(reasoning    that    prosecution       is    not    persecution      absent

evidence that prosecution is a pretext to target the applicant

on account of a protected ground).

      Given   the    inconsistencies         relating   to    the    alleged

incidents of persecution, Jamarjashvili’s vague responses,

and the insufficient corroborating evidence, the totality of

the    circumstances      supports       the        adverse    credibility

determination.       See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 166-67.      That determination is dispositive

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

three claims rely on Jamarjashvili’s credibility.                   See Paul

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

Ineffective Assistance of Counsel

      Finally, despite her attorney’s errors, Jamarjashvili

failed to establish ineffective assistance of counsel.                    To

demonstrate ineffective assistance, an applicant must show

that counsel’s allegedly deficient performance prejudiced
                                    9
her.     See Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.

2010).    Jamarjashvili   argues    that   her   attorney   failed   to

highlight and tab background evidence, but fails to establish

prejudice because she did not identify evidence that would

have changed the outcome of her case had the IJ afforded it

more weight.    See Esposito v. INS, 987 F.2d 108, 111 (2d Cir.

1993) (reasoning that, to allege prejudice, petitioner must

show that “result would have been different” had counsel not

erred).    Similarly, although she argues that she was not able

to fully present her case before the IJ because her attorney

interrupted her cross examination, she does not identify what

information she was unable to convey to the IJ.

       For the foregoing reasons, the petition for review is

DENIED.    The motion for a stay of removal is DISMISSED as

moot.

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




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