     17-1752
     Torba v. Barr
                                                                                   BIA
                                                                              Wright, IJ
                                                                           A078 280 102
                          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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 7th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            JOSÉ A. CABRANES,
 9            BARRINGTON D. PARKER,
10                 Circuit Judges.
11   _____________________________________
12
13   ERMAL TORBA,
14            Petitioner,
15
16                   v.                                          17-1752
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jon E. Jessen, Stamford, CT.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Song Park,
27                                    Senior Litigation Counsel;
28                                    Victoria M. Braga, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    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 Ermal Torba, a native and citizen of Albania,

6    seeks review of a May 4, 2017, decision of the BIA affirming

7    a March 2, 2016, decision of an Immigration Judge (“IJ”)

8    denying    Torba’s   application       for   asylum,   withholding   of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Ermal Torba, No. A 078 280 102 (B.I.A. May 4,

11   2017), aff’g No. A 078 280 102 (Immig. Ct. N.Y. City Mar. 2,

12   2016).       We   assume   the   parties’     familiarity   with     the

13   underlying facts and procedural history in this case.

14       We have reviewed the IJ’s decision as supplemented by

15   the BIA.     See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.

16   2007).    The standards of review are well established.            See 8

17   U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513

18   (2d Cir. 2009).      Substantial evidence supports the agency’s

19   determination that Torba’s claim of past persecution based on

20   his political opinion was not credible.           Nor did the agency

21   err in finding that Torba did not demonstrate a well-founded

22   fear of future persecution on account of a blood feud.
                                        2
1    Adverse Credibility Determination

2          Torba filed for asylum before May 11, 2005, so his

3    application is not subject to the credibility provisions of

4    the REAL ID Act.     See REAL ID Act of 2005, Div. B of Pub. L.

5    No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.

6    § 1158(b)(1)(B)(iii)); In re S-B-, 24 I. & N. Dec. 42, 45

7    (BIA 2006).    “We review the IJ’s adverse credibility finding

8    under the substantial evidence standard, which requires that

9    the decision be supported by ‘reasonable, substantial and

10   probative evidence in the record.’”           Diallo v. U.S. Dep’t of

11   Justice, 548 F.3d 232, 234 (2d Cir. 2008) (quoting Lin Zhong

12   v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir. 2007)).

13   Inconsistencies and other discrepancies in the evidence are

14   often   sufficient      to   support     an     adverse   credibility

15   determination, but they “need not necessarily be fatal . . .

16   if the disparities are relatively minor and isolated and do

17   not concern material facts,” and the testimony is otherwise

18   “generally    consistent,    rational,    and    believable.”        Id.

19   (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

20   335   (2d   Cir.   2006)).   A   discrepancy      generally   must   be

21   substantial when measured against the record as a whole,

22   Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003), but
                                      3
1    “even where an IJ relies on discrepancies or lacunae that, if

2    taken separately, concern matters collateral or ancillary to

3    the claim, . . . the cumulative effect may nevertheless be

4    deemed consequential by the fact-finder,” Tu Lin v. Gonzales,

5    446 F.3d 395, 402 (2d Cir. 2006) (internal citations and

6    quotation marks omitted).       Substantial evidence supports the

7    agency’s determination that Torba was not credible.

8           First, Torba’s inconsistent testimony at the 2002 and

9    2013 hearings provides substantial evidence for the adverse

10   credibility determination.       See Diallo, 548 F.3d at 234.       The

11   IJ reasonably relied on his inconsistent statements regarding

12   whether he recognized the individuals who assaulted him in

13   February 1999 because it related to both an alleged act of

14   persecution and whether the perpetrators targeted him on

15   account of his political opinion.         See Xian Tuan Ye v. Dep’t

16   of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding

17   that    “‘a   material    inconsistency   in    an   aspect   of   [the

18   applicant]’s story that served as an example of the very

19   persecution from which he sought asylum’ . . . afforded

20   substantial    evidence    to   support   the   adverse   credibility

21   finding” (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d

22   Cir. 2005))).    The IJ also reasonably relied on a more minor
                                        4
1    inconsistency—whether Torba was the driver or passenger of a

2    car that was allegedly shot at by socialists in a later

3    incident—particularly     as     the    incident    was   the     one   that

4    prompted him to leave Albania.          See Tu Lin, 446 F.3d at 402.

5    The discrepancy regarding the time Torba spent in hiding at

6    his uncle’s house—for two to six months or a year and a half—

7    is substantial as it relates to whether he feared further

8    persecution.   See Xian Tuan Ye, 446 F.3d at 295.             And Torba’s

9    testimony   was    inconsistent        with   his   written       statement

10   regarding whether an altercation with the police occurred

11   during a funeral or a demonstration after a funeral.                 See Tu

12   Lin, 446 F.3d at 402.     The agency was not required to accept

13   Torba’s   explanation     that    the    inconsistencies         should    be

14   excused because of the time that passed between hearings,

15   particularly      given   the     centrality        of    some     of     the

16   inconsistencies to the incidents of alleged persecution.                  See

17   Majidi, 430 F.3d at 80-81 (holding that an agency need not

18   credit an applicant’s explanations for inconsistent testimony

19   unless those explanations would compel a reasonable fact-

20   finder to do so).

21       Second, the adverse credibility determination is

22   bolstered by the IJ’s finding that Torba failed to
                                        5
1    rehabilitate his testimony with reliable corroborating

2    evidence.    See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

3    Cir. 2007) (“An applicant’s failure to corroborate his or

4    her testimony may bear on credibility, because the absence

5    of corroboration in general makes an applicant unable to

6    rehabilitate testimony that has already been called into

7    question.”).   Torba has waived and failed to exhaust any

8    challenge to the corroboration finding.    See Lin Zhong v.

9    U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

10   (requiring petitioner to exhaust issues before the BIA);

11   Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

12   (“Issues not sufficiently argued in the briefs are

13   considered waived and normally will not be addressed on

14   appeal.”).

15   Well-Founded Fear of Future Persecution

16       The agency also did not err in finding that Torba did

17   not demonstrate that he would be harmed as a “young Torba

18   male” as a result of a blood feud.   Absent past

19   persecution, an alien may establish eligibility for asylum

20   by demonstrating a well-founded fear of future persecution,

21   8 C.F.R. § 1208.13(b)(2), which must be both subjectively


                                    6
1    credible and objectively reasonable, Ramsameachire v.

2    Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

3        The   agency    reasonably     concluded    that   Torba       did   not

4    demonstrate    an    objectively       reasonable    fear     of     future

5    persecution.     See id.        Torba did not report any direct

6    threats   to   himself   and,    although      his   father    has       been

7    threatened, he has not been harmed.         See Melgar de Torres v.

8    Reno, 191 F.3d 307, 313 (2d Cir. 1999) (holding that a fear

9    of persecution is undermined when similarly-situated family

10   members remain unharmed in native country).            Torba provided

11   no support for his claim that he is at an increased risk of

12   harm because of his long residence in the United States.

13   Furthermore, the agency reasonably gave diminished weight to

14   the alleged certification of the blood feud because the code

15   it references was not produced, it was signed by someone named

16   Torba, and the document’s 2011 date was handwritten over the

17   original date.      See Y.C. v. Holder, 741 F.3d 324, 332, 334

18   (2d Cir. 2013) (“We generally defer to the agency’s evaluation

19   of the weight to be afforded an applicant’s documentary

20   evidence”).    Accordingly, the agency reasonably concluded

21   that there was insufficient evidence that the Torba would be

22   singled out for harm as a result of this blood feud.
                                        7
1        Because Torba was unable to establish past persecution

2    or well-founded fear of future persecution to make out an

3    asylum claim, he was necessarily unable to meet the higher

4    standard required to succeed on a claim for withholding of

5    removal and CAT protection.     See Lecaj v. Holder, 616 F.3d

6    111, 119 (2d Cir. 2010).

7        For the foregoing reasons, the petition for review is

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

9    that the Court previously granted in this petition is VACATED,

10   and any pending motion for a stay of removal in this petition

11   is DISMISSED as moot.    Any pending request for oral argument

12   in this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe,
17                                 Clerk of Court




                                    8
