         11-4908
         Tosic v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A076 141 451
                            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 20 th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       MIRSAD HAKO TOSIC,
14                Petitioner,
15
16                         v.                                   11-4908
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Andrew P. Johnson, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Douglas E.
28                                     Ginsburg, Assistant Director; Zoe J.
29                                     Heller, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington D.C.
33
34
 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 Mirsad Hako Tosic, a native of Yugoslavia

 6   and a citizen of Montenegro, seeks review of an October 28,

 7   2011, decision of the BIA affirming the July 14, 2010,

 8   decision of Immigration Judge (“IJ”) Javier Balasquide,

 9   denying his application for asylum, withholding of removal,

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

11   re Mirsad Hako Tosic, No. A076 141 451 (B.I.A. Oct. 28,

12   2011), aff’g No. A076 141 451 (Immig. Ct. N.Y. City July 14,

13   2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case we have reviewed

16   both the IJ’s and BIA’s decisions “for the sake of

17   completeness.”   See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

18   Cir. 2008) (per curiam) (internal quotation marks omitted).

19   The applicable standards of review are well established.

20   See 8 U.S.C. § 1252(b)(4)(B); see also Yun-Zui Guan v.

21   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

22   For asylum applications submitted prior to the passage of

23   the REAL ID Act, such as Tosic’s application, an adverse

                                   2
 1   credibility determination must be based on “specific, cogent

 2   reasons” that “bear a legitimate nexus to the finding,” and

 3   any discrepancy must be “substantial” when measured against

 4   the record as a whole.    See Secaida-Rosales v. INS, 331 F.3d

 5   297, 307-08 (2d Cir. 2003) (internal quotation marks

 6   omitted), superseded by the REAL ID Act as recognized in Xiu

 7   Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per

 8   curiam).    The agency’s adverse credibility determination is

 9   supported by substantial evidence.

10       In finding Tosic not credible, the agency reasonably

11   relied on the inconsistency between Tosic’s assertion in his

12   asylum applications that he was ethnically Albanian and his

13   later testimony before the IJ that he was not ethnically

14   Albanian.    See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 74

15   (2d Cir. 2004) (noting that the Court generally will not

16   disturb adverse credibility determinations that are based on

17   “specific examples in the record of inconsistent statements

18   . . . about matters material to [an applicant’s] claim of

19   persecution”) (internal quotation marks omitted), overruled

20   in part on other grounds by Shi Liang Lin v. U.S. Dep’t of

21   Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc).       Tosic

22   argues that this inconsistency does not “reveal [anything]

23   about [his] credibility.”    To the extent that Tosic is

                                    3
 1   asserting that his ethnicity bears no legitimate nexus to

 2   the agency’s adverse credibility determination, his argument

 3   is without merit because his alleged fear is based in part

 4   on his wife’s Albanian ethnicity.   Furthermore, the agency

 5   was not required to credit Tosic’s explanation that the

 6   inconsistency was caused by preparer’s error as that

 7   explanation was undermined by his testimony that he claimed

 8   to be ethnically Albanian because he was “afraid.”     See

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

10   agency need not credit an applicant’s explanations for

11   inconsistent testimony unless those explanations would

12   compel a reasonable fact-finder to do so).

13       Having questioned Tosic’s credibility, the agency

14   reasonably relied further on his failure to provide

15   sufficient evidence to corroborate his claim, including any

16   evidence of his financial support of the independence of

17   Montenegro.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

18   (2d Cir. 2007) (per curiam) (an asylum applicant’s failure

19   to corroborate his testimony may bear on his credibility,

20   “because the absence of corroboration in general makes an

21   applicant unable to rehabilitate testimony that has already

22   been called into question”).   The agency was not required to

23   credit Tosic’s explanations that he could not obtain

                                    4
 1   corroboration because he sent the money in cash and because

 2   his mother was not educated.   See Majidi, 430 F.3d at 80-81.

 3   As the agency noted, Tosic’s mother supplied an affidavit

 4   that did not mention Tosic’s support of the independence of

 5   Montenegro, even though he alleged that his mother was

 6   visited monthly by Serbian nationals who were seeking Tosic

 7   because of that financial support.

 8       In sum, the adverse credibility determination is

 9   supported by substantial evidence, and the agency did not

10   err by denying asylum, withholding of removal, and CAT

11   relief because those claims all were based on the same

12   factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-

13   57 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

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

16   for a stay of removal in this petition is DISMISSED as moot.

17

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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