         12-2190
         Efendija v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A093 338 405
                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       MERITA EFENDIJA,
14                Petitioner,
15
16                            v.                                12-2190
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Sokol Braha, New York, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Principal Deputy
26                                      Assistant Attorney General; Edward
27                                      J. Duffy, Senior Litigation Counsel;
28                                      Julie S. Saltman, Trial Attorney;
29                                      Office of Immigration Litigation,
30                                      United States Department of Justice,
31                                      Washington, D.C.
 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       Merita Efendija, a native of the former Yugoslavia and

 6   a citizen of Kosovo, seeks review of a April 26, 2012,

 7   decision of the BIA (1) affirming the January 12, 2010,

 8   decision of Immigration Judge (“IJ”) Mary M. Cheng, which

 9   denied her application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”); and

11   (2) denying her motion to reopen and remand.     In re Merita

12   Efendija, No. A093 338 405 (B.I.A. Apr. 26, 2012), aff’g No.

13   A093 338 405 (Immig. Ct. N.Y. City January 12, 2010).     We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   the IJ’s decision as supplemented by the BIA.     See Yan Chen

18   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

19   applicable standards of review are well-established.     See

20   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

21   510, 513 (2d Cir. 2009); Li Yong Cao v. Dep't of Justice,

22   421 F.3d 149, 156 (2d Cir. 2005).

23

                                  2
 1   I.   Adverse Credibility Determination

 2        For applications such as Enfendija’s, governed by the

 3   amendments made to the Immigration and Nationality Act by

 4   the REAL ID Act of 2005, the agency may, considering the

 5   totality of the circumstances, base a credibility finding on

 6   an asylum applicant’s “demeanor, candor, or responsiveness,”

 7   the plausibility of her account, and inconsistencies in her

 8   statements, without regard to whether they go “to the heart

 9   of the applicant’s claim.”     8 U.S.C. §§ 1158(b)(1)(B)(iii),

10   1231(b)(3)(C); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

11   (2d Cir. 2008) (per curiam).    Furthermore, for purposes of a

12   credibility determination, “[a]n inconsistency and an

13   omission are . . . functionally equivalent.”     Xiu Xia Lin,

14   534 F.3d at 166.   We “defer to an IJ’s credibility

15   determination unless, from the totality of the

16   circumstances, it is plain that no reasonable fact-finder

17   could make such an adverse credibility ruling.”     Id. at 167.

18        In this case, the agency reasonably based its adverse

19   credibility determination on inconsistencies between

20   Enfendija’s written statement and her testimony, including

21   discrepancies as to her political role in Kosovo, how she

22   identified the perpetrators of an attack against her, and


                                     3
 1   her location when an explosion occurred at her father’s

 2   store.   Because the REAL ID Act permits the agency to base a

 3   credibility finding on any inconsistency, without regard to

 4   whether it goes “to the heart of the applicant’s claim,”

 5   8 U.S.C. § 1158(b)(1)(B)(iii), the inconsistencies between

 6   Enfendija’s written statement and her testimony provide

 7   substantial evidence supporting the agency’s adverse

 8   credibility determination, particularly because they relate

 9   to her allegations of past harm.     See Xiu Xia Lin, 534 F.3d

10   at 166, 167.    Furthermore, the agency reasonably rejected

11   Enfendija’s explanations for the inconsistencies.     See

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

13       Moreover, the adverse credibility determination is

14   further supported by the IJ’s demeanor finding.     Because the

15   IJ was in the best position to observe Enfendija’s manner

16   while testifying, we afford the demeanor finding particular

17   deference.     See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

18   Cir. 2006).

19       Because the only evidence of a threat to Enfendija’s

20   life or freedom depended upon her credibility, the adverse

21   credibility determination in this case necessarily precludes

22   success on her claims for relief.     See Xue Hong Yang v. U.S.

23   Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

                                     4
 1   II.   Motion to Remand

 2         The BIA’s denial of a motion to remand is held to the

 3   substantive standard of review for motions to reopen and

 4   reconsider.   Li Yong Cao, 421 F.3d at 151, 156.   “The BIA

 5   has broad discretion to deny a motion to remand grounded on

 6   new evidence,” and accordingly, we review the BIA’s denial

 7   of such a motion for abuse of discretion.     Id. at 156-57

 8   (citing INS v. Doherty, 502 U.S. 314, 323 (1992)).     The BIA

 9   may deny motions to remand when a prima facie case for the

10   relief sought is not established.   Id. at 156.    To establish

11   a prima facie case, a petitioner has “the heavy burden of

12   demonstrating that the proffered new evidence would likely

13   alter the result in her case,” and must show “a realistic

14   chance” of obtaining relief upon reopening.     See Jian Hui

15   Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (internal

16   quotation marks omitted).

17         In support of remand, Enfendija submitted an affidavit

18   in which she states that her initial declaration, written in

19   Albanian, indicated that she was inside her father’s store

20   when an explosion occurred, thereby addressing one of the

21   inconsistencies in her testimony, and that she was in

22   possession of that original declaration, although she did

23   not submit it.   Enfendija does not explain why the original
                                   5
 1   declaration was previously unavailable, nor how it affects

 2   the IJ’s adverse credibility determination and establishes

 3   her prima facie eligibility for asylum.    Accordingly, the

 4   BIA did not abuse its discretion in denying Enfendija’s

 5   motion to remand.   See Li Yong Cao, 421 F.3d at 156.

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

10   this petition is DISMISSED as moot.    Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16




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