     17-3920
     Dekaj v. Barr
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A206 429 345
                          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 19th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13
14   FATMIR DEKAJ,
15            Petitioner,
16
17                   v.                                          17-3920
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Charles Christophe, New York, NY.
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Jeffery R.
28                                    Leist, Senior Litigation Counsel;
29                                    Lance L. Jolley, Trial Attorney,
30                                    Office of Immigration Litigation,
31                                    United States Department of
32                                    Justice, 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 Fatmir Dekaj, a native and citizen of Albania,

6    seeks review of a November 9, 2017, decision of the BIA

7    affirming a February 15, 2017, decision of an Immigration

8    Judge (“IJ”) denying his application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Fatmir Dekaj, No. A206 429 345 (B.I.A. Nov.

11   9, 2017), aff’g No. A206 429 345 (Immig. Ct. N.Y. City Feb.

12   15, 2017).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified by the BIA, i.e., minus the

16   IJ’s inconsistency findings that the BIA did not affirm.   See

17   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

18   Cir. 2005).      The applicable standards of review are well

19   established.    See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

20   Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

21       “Considering the totality of the circumstances, and all

22   relevant factors, a trier of fact may base a credibility


                                    2
1    determination       on   .    .     .    the    consistency      between     the

2    applicant’s or witness’s written and oral statements . . . ,

3    the   internal      consistency          of    each    such   statement,     the

4    consistency    of      such   statements         with    other    evidence   of

5    record . . . without regard to whether an inconsistency,

6    inaccuracy, or falsehood goes to the heart of the applicant’s

7    claim,    or     any     other          relevant      factor.”         8 U.S.C.

8    § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

9    163-64 (2d Cir. 2008).              Substantial evidence supports the

10   agency’s determination that Dekaj was not credible as to his

11   claims that Socialist Party members attacked him in 2012 and

12   police detained and beat him in 2013 on account of his

13   membership in the Democratic Party.

14         The agency reasonably relied on Dekaj’s inconsistent and

15   changing testimony regarding whether his alleged 2012 attack

16   was   reported      to   police         and    by     whom.      See   8 U.S.C.

17   § 1158(b)(1)(B)(iii).             Dekaj testified inconsistently that

18   he reported the attack to police, his cousin Mark reported

19   it, that Mark’s son found a “guy” to report it, and that

20   either Mark or another cousin Augustine reported it.

21         The agency further reasonably relied on inconsistencies

22   between Dekaj’s testimony that he was attacked in April 2012


                                               3
1    right before the local elections, in which he was “actively

2    involved,”    and    his    father’s       and   fellow   victim’s    written

3    statements that the incident occurred shortly before the

4    local   elections          in   May    of        2011.      See      8 U.S.C.

5    § 1158(b)(1)(B)(iii).           Dekaj insisted that his father and

6    fellow victim had provided the wrong year.                  The IJ was not

7    compelled to credit Dekaj’s explanation that both his friend

8    and father made identical errors in their written statements.

9    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

10   petitioner must do more than offer a plausible explanation

11   for his inconsistent statements to secure relief; he must

12   demonstrate that a reasonable fact-finder would be compelled

13   to   credit    his     testimony.”          (internal     quotation    marks

14   omitted)); see also Mei Chai Ye v. U.S. Dep’t of Justice, 489

15   F.3d 517, 524 (2d Cir. 2007) (“[T]his court has . . . firmly

16   embraced the commonsensical notion that striking similarities

17   between affidavits are an indication that the statements are

18   canned.” (internal quotation marks omitted)).

19        The agency also reasonably relied on Dekaj’s inconsistent

20   evidence regarding the statements his alleged attackers made

21   during the incident.            See 8 U.S.C. § 1158(b)(1)(B)(iii).

22   Although “trivial differences in the wording of statements


                                            4
1    describing     the    same   event   are   not   sufficient    to   create

2    inconsistencies,” Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.

3    2019), the only similarity between Dekaj’s and his fellow

4    victim’s descriptions is that their attackers mentioned the

5    name of a local parliamentary member.             Otherwise, Dekaj and

6    the other victim stated that the attackers mentioned the

7    parliamentary member in different contexts and called them

8    different insulting names.            The other victim also claimed

9    that the attackers threatened to kill them during the attack

10   and mentioned other Democratic Party members by name, while

11   Dekaj did not make such assertions.

12         Having    questioned     Dekaj’s     credibility,       the   agency

13   reasonably relied further on his failure to rehabilitate his

14   testimony      with    reliable      corroborating    evidence.           “An

15   applicant’s failure to corroborate his or her testimony may

16   bear on credibility, because the absence of corroboration in

17   general makes an applicant unable to rehabilitate testimony

18   that has already been called into question.”                Biao Yang v.

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

20   found, several letters Dekaj submitted were inconsistent with

21   his   testimony.        Alternatively,     the   IJ   did    not    err   in

22   declining to credit the unsworn letters from Dekaj’s father,


                                           5
1    friend, and cousin because the authors were not made available

2    for cross-examination.      See Y.C. v. Holder, 741 F.3d 324, 334

3    (2d Cir. 2013) (deferring to agency’s decision to afford

4    little weight to relative’s letter from China because it was

5    unsworn and from an interested witness).            As with Dekaj’s

6    testimony, a hospital report and letter from the District

7    Deputy of the Democratic Party were inconsistent with Dekaj’s

8    father’s and fellow victim’s letters regarding the year of

9    the attack.      And, aside from his father’s letter, which the

10   agency reasonably declined to credit, Dekaj did not submit

11   any evidence corroborating his claim that he was arrested and

12   beaten in detention in 2013.

13        Given    Dekaj’s   inconsistent   evidence    and    insufficient

14   corroboration, the agency’s adverse credibility determination

15   is   supported     by   substantial    evidence.         See   8 U.S.C.

16   § 1158(b)(1)(B)(iii).      That determination is dispositive of

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

18   three claims were based on the same factual predicate.              See

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

20        For the foregoing reasons, the petition for review is

21   DENIED.   As we have completed our review, the pending motion

22   for a stay of removal in this petition is DISMISSED as moot,


                                      6
1   and the pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate Procedure

3   34(a)(2), and Second Circuit Local Rule 34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe
6                               Clerk of Court




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