    12-620
    Lajqi v. Holder
                                                                                  BIA
                                                                         Vomacka, IJ
                                                                          A099 427 390
                      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.

         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 7th day of November, two thousand thirteen.

    PRESENT:
                 JOHN M. WALKER, JR.,
                 PETER W. HALL,
                 DENNY CHIN,
                      Circuit Judges.

    _______________________________________

    SHABAN LAJQI,
             Petitioner,

                  v.                                       12-620
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Gregory Marotta, Vernon, NJ.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Blair O’Connor,
                                  Assistant Director; Rachel L.
                                  Browning, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
     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 DISMISSED in part and DENIED in part.

     Shaban Lajqi, a native of the former Yugoslavia and
citizen of what is recognized today as Kosovo, seeks review
of a January 25, 2012 decision of the BIA affirming the July
10, 2009 decision of Immigration Judge (“IJ”) Alan A.
Vomacka, which pretermitted his asylum application and
denied his application for withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Shaban
Lajqi, No. A099 427 390 (B.I.A. Jan. 25, 2012), aff’g No.
A099 427 390 (Immig. Ct. N.Y. City July 10, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.

     Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented and modified by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Because Lajqi does not challenge the denial of CAT relief,
we review only the denial of asylum and withholding of
removal.

I.   Asylum

     This Court lacks jurisdiction to review the
pretermission of an asylum application unless the petitioner
raises a colorable constitutional claim or question of law.
See 8 U.S.C. § 1252(a)(2)(C),(D); Barco-Sandoval v.
Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack
jurisdiction to review any legal argument that is so
insubstantial and frivolous as to be inadequate to invoke
federal-question jurisdiction.”). Lajqi fails to do so,
challenging only the IJ’s factual findings. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
2006) (distinguishing an argument that “merely quarrels over
the correctness of the factual findings or justification for
the discretionary choices, in which case the court would
lack jurisdiction, [with one that] raises a [reviewable]
‘constitutional claim’ or ‘question of law’”). Lajqi argues
that the IJ failed to consider expert testimony that his
post-traumatic stress disorder (“PTSD”) could account for

                             2
the inconsistencies in his testimony, therefore, raising a
question of law. See id. at 336 n.17. His argument is
baseless, however, because the expert did not so testify and
the IJ explicitly considered Lajqi’s testimony that memory
loss could account for the inconsistencies.

II. Withholding of Removal

     Lajqi’s application is governed by the amendments made
to the Immigration and Nationality Act by the REAL ID Act of
2005. In considering the totality of the circumstances, the
agency may base a credibility finding on the applicant’s
“demeanor, candor, or responsiveness,” the plausibility of
his account, and inconsistencies in his statements, without
regard to whether “ an inconsistency ... goes to the heart
of the applicant’s claim.” See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 163 n.2 (2d Cir. 2008) (per curiam).
We will “defer therefore to an IJ’s credibility
determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.

     Here, the IJ reasonably based his adverse credibility
determination on inconsistencies in Lajqi’s testimony and
inconsistencies between his testimony and his asylum
application statement, including: (1) Lajqi’s conflicting
testimony that he left Kosovo in February 2004 and arrived
to the United States in September 2005, which contradicted
his later testimony that he left Kosovo in late 2004 and
arrived to the United States in January 2005, and his asylum
statement demonstrating that he entered in February 2005;
(2) Lajqi’s testimony that he spent 10 days in Mexico en
route to the United States, which contradicted his statement
that he stayed 30 days in Mexico; (3) his testimony that his
cousin was alone when shot and killed along with two other
individuals, which contradicted his statement that his
cousin was with his friend when shot and killed along with
three other individuals; and (4) his testimony that he was
first attacked by extremists opposed to his political party
in March 2004, and sought medical assistance two months
thereafter, which contradicted his later testimony that he
was attacked in May 2004 and immediately visited a doctor.
See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia
Lin, 534 F.3d at 167.



                             3
     Moreover, the IJ reasonably rejected Lajqi’s
explanations because they did not explain fully the
inconsistencies between his testimony and asylum
application. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005). Lajqi’s assertion, for instance, that memory
loss due to either PTSD or time, caused him to provide an
entry date in testimony different from the date stated in
his asylum application did not sufficiently explain the
discrepancies. Similarly, Lajqi’s explanation that his
testimony that he spent 10 days in Mexico was intended to
reference his time on the border rather than the total
amount of time spent in the country contradicted his asylum
application, which stated that he was in Mexico City from
January 17 to February 10 and then traveled toward the
border, crossing into the United States on February 17,
2005. Lajqi’s explanation that the fourth person he failed
to mention when describing his cousin’s murder was wounded
also failed to rectify his application statement that all
four individuals who were shot were killed. Finally, the IJ
reasonably rejected Lajqi’s attempt to rectify his
contradictory testimony regarding his medical visit as
insufficient. Lajqi’s claim that he did not testify to
waiting two months to see a doctor, and that his bruises
were visible two months after his attack, contradicted his
other testimony that he did wait two months after his attack
to visit a doctor. His contradictory testimony also fails to
explain the date of the attack itself. The IJ therefore
reasonably relied on these inconsistencies in finding that
Lajqi lacked credibility. See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
at 167.

     The IJ also reasonably relied on the implausibility of
aspects of Lajqi’s testimony in making an adverse
credibility determination, specifically: (1) Lajqi’s
failure to remember important political elections in Kosovo,
despite claiming persecution based on his involvement in
Kosovan politics; and (2) Lajqi’s belief that an Albanian
ethnic group doctor would give dangerous or ineffective
medical treatment to someone aligned with a different
political group. See Xiao Ji Chen, 471 F.3d at 336 n.16
(upholding an implausibility finding because the finding was
not based on flawed reasoning, speculation, or conjecture).
Lajqi challenges the IJ’s rejection of the expert witness’s
testimony that his PTSD may have caused him to forget
important Kosovan election dates. Because the expert’s
testimony was not based on her direct assessment of Lajqi

                             4
but rather on the hypothetical posed by the Government’s
attorney, the testimony does not compel the conclusion that
Lajqi’s failure to recall the elections was due to his PTSD
or memory loss. See Majidi, 430 F.3d at 80-81.
Furthermore, despite the IJ’s remarks that the expert may
have been biased, the BIA did not err in finding that the
remarks were harmless error because the IJ reasonably found
that the expert’s testimony did not explain whether or how
PTSD would prevent an individual from remembering momentous
events or explain the discrepancies in Lajqi’s testimony.
The IJ’s error, therefore, did not change the outcome of the
proceedings and did not deprive Lajqi of due process. See
Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d
Cir. 2006) (noting that “[d]ue process requires that an
applicant receive a full and fair hearing which provides a
meaningful opportunity to be heard.”).

     Given these inconsistencies and implausibilities, the
totality of the circumstances supports the agency’s adverse
credibility determination. See 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
at 163 n.2. As the only evidence of a threat to Lajqi’s
life or freedom depended upon his credibility, the adverse
credibility determination in this case necessarily precludes
success on his claim for withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             5
