         09-1335-ag
         Markaj v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A094 802 825
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of October, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                       Circuit Judges.
11       _______________________________________
12
13       VIKTOR MARKAJ,
14                Petitioner,
15
16                          v.                                  09-1335-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Fatos Koleci, Milford, Connecticut.
24
25       FOR RESPONDENT:                  Tony West, Assistant Attorney
26                                        General; Daniel E. Goldman, Senior
27                                        Litigation Counsel; Eric W.
28                                        Marsteller, Trial Attorney, Office
29                                        of Immigration Litigation, Civil
30                                        Division, United States Department
31                                        of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Petitioner Viktor Markaj, a native and citizen of

 6   Serbia, seeks review of a March 2, 2009, order of the BIA

 7   affirming the April 26, 2007, decision of Immigration Judge

 8   (“IJ”) Michael W. Straus, denying his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Viktor Markaj,

11   No. A094 802 825 (B.I.A. Mar. 2, 2009), aff’g No. A094 802

12   825 (Immig. Ct. Hartford Apr. 26, 2007).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions.   See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

18   standards of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20   66 (2d Cir. 2008).

21       Substantial evidence supports the IJ’s adverse

22   credibility determination.   As the IJ found, Markaj omitted


                                   2
 1   during his credible fear interview and from his asylum

 2   application his claim raised at his hearing that he was

 3   harmed because he was a member of the Democratic League of

 4   Kosovo (“LDK”), stating instead that the harm he suffered

 5   was based on his engagement to a Serbian woman and his

 6   refusal to join the Kosovo Liberation Army during the 1999

 7   war.   Markaj’s omission of his LDK membership as a basis for

 8   his claim of past persecution and well-founded fear of

 9   future persecution was sufficiently dramatic to undermine

10   his credibility.    See 8 U.S.C. § 1158(b)(1)(B)(iii); see

11   also Xiu Xia Lin, 534 F.3d at 166-67 n.3 (noting that

12   inconsistencies and omissions are “functionally

13   equivalent”).   Furthermore, the IJ reasonably declined to

14   credit Markaj’s explanation that his answers at his credible

15   fear interview had to be brief because he was repeatedly

16   asked at that interview about the basis for his fear of

17   persecution.    See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

18   Cir. 2005) (emphasizing that the agency need not credit an

19   applicant’s explanations for inconsistent testimony unless

20   those explanations would compel a reasonable fact-finder to

21   do so).   Moreover, Markaj’s argument failed to explain the

22   omission of this claim from his asylum application.


                                    3
 1       Because the IJ reasonably found Markaj not credible,

 2   the IJ did not err in relying on the absence of country

 3   conditions evidence corroborating his claim that he was

 4   targeted as an LDK member.   See Biao Yang v. Gonzales, 496

 5   F.3d 268, 273 (2d Cir. 2007).       Furthermore, contrary to

 6   Markaj’s argument, the IJ reasonably gave diminished weight

 7   to his individualized corroborating evidence, including both

 8   a medical letter and his identity documents.       See Xiao Ji

 9   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

10   2006) (finding that the weight afforded to the applicant’s

11   evidence in immigration proceedings lies largely within the

12   discretion of the agency).

13       Accordingly, considering the totality of the

14   circumstances and all relevant factors, the IJ’s adverse

15   credibility determination was supported by substantial

16   evidence.   See 8 U.S.C. § 1158(b)(1)(B)(iii).      Because the

17   IJ reasonably concluded that Markaj was not credible as to

18   his claims of past persecution and a well-founded fear of

19   future persecution, the adverse credibility determination in

20   this case necessarily precludes success on his claim for

21   asylum, withholding of removal, and CAT relief, as those

22   claims were based on the same factual predicate.       See Paul

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

                                     4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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