09-3369-ag
K lobucista v. H older

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY 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. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30 th day of September, two thousand ten.

PRESENT:         JON O. NEWMAN,
                 REENA RAGGI,
                                 Circuit Judges,
                 JED S. RAKOFF,
                                 District Judge.*
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ISNI KLOBUCISTA,
                                          Petitioner,
                  v.                                                   No. 09-3369-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                                          Respondent.
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APPEARING FOR PETITIONER:                         OLEH R. TUSTANIWSKY, New York, New
                                                  York (Andrew P. Johnson, New York, New York,
                                                  on the brief).

APPEARING FOR RESPONDENT:                         BRENDAN P. HOGAN, Attorney (Tony West,
                                                  Assistant Attorney General, Keith I. McManus,
                                                  Senior Litigation Counsel, on the brief), Office of


           *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
                                             Immigration Litigation, Civil Division, 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.

       Isni Klobucista, a native and citizen of Macedonia, seeks review of a July 8, 2009

order of the BIA affirming the October 23, 2007 decision of Immigration Judge (“IJ”)

Patricia A. Rohan denying his application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). See In re Isni Klobucista, No. A095 001

481 (B.I.A. July 8, 2009), aff’g No. A095 001 481 (Immig. Ct. N.Y.C. Oct. 23, 2007).

Where, as here, the BIA does not expressly adopt the IJ’s decision but closely tracks the IJ’s

reasoning, we may consider both the IJ’s and the BIA’s opinions for the sake of

completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the

agency’s factual findings, including adverse credibility determinations, under the substantial

evidence standard, treating such findings as “conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). In applying these standards, we assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision.




       1.     Asylum

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          This Court lacks jurisdiction to review Klobucista’s challenge to the pretermission of

his asylum application.       See 8 U.S.C. § 1158(a)(2)(B), (a)(3).       Although we retain

jurisdiction to review constitutional claims or questions of law, Klobucista challenges only

the correctness of the agency’s factual findings. See 8 U.S.C. § 1252(a)(2)(D); Xiao Ji Chen

v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). Accordingly, we dismiss the

petition insofar as it seeks review of the agency’s pretermission ruling.

          2.      Withholding of Removal and CAT Relief

          Turning to Klobucista’s claims for withholding of removal and CAT relief, we

conclude that substantial evidence supports the agency’s adverse credibility determination.

The IJ reasonably based its determination on discrepancies between Klobucista’s written

asylum application and his oral testimony, along with the implausibility of certain aspects

of his claim. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116-17 (2d Cir. 2007);

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d at 335-336. Specifically, the IJ noted

Klobucista’s (1) failure to testify to a January 2000 incident mentioned in his written asylum

application during which security officers allegedly stormed his home, arrested members of

his family, and eventually sentenced his father to five years’ imprisonment; (2) lack of

knowledge about the current security situation in Macedonia despite his claimed fear for his

life; and (3) acknowledgment that he left Macedonia in 1999 and was unharmed upon his

return.        These inconsistencies amply supported the agency’s adverse credibility

determination. Further, having called Klobucista’s credibility into question, the IJ did not


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err in basing her adverse credibility determination in part on Klobucista’s failure to

corroborate his claim with reasonably available evidence. See Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007).

       We note that the record reflects some confusion in Klobucista’s testimony, which led

to some confusion in the IJ’s findings. In his asylum application, Klobucista recounted four

occasions on which he was arrested. These occurred in October 1996, April 1999, January

2000, and June 2000. The application states that the 1996 arrest occurred at his uncle’s

house and does not mention the arrest of any family members. It further states that the

January 2000 arrest occurred at his house, and on that occasion, “[t]hey stormed the house

and lined every member of our entire family against a wall in our courtyard” and “we were

kept in the courtyard for almost an hour, in the cold of January” before being taken to the

local police station and ultimately to prison. On this occasion his father was given a five-

year sentence.

       At the hearing, Klobucista testified that his first “problems” occurred in October 1996,

when he was arrested at his uncle’s house. When asked what happened, he testified, “They

entered the house and they lined us on the wall, all of us,” and that “it was cold and it was

night.” However, according to the asylum application, being lined up and standing in the

cold occurred during the January 2000 incident.

       When the IJ asked Klobucista why he had not mentioned the January 2000 incident

in his testimony, Klobucista answered, “I thought that I told this incident when I said that


                                              4
they lined us on the wall,” to which the IJ responded, “Well, sir, you told us that they lined

you on the wall in connection with a different incident.” In his opinion, the IJ stated that

Klobucista failed to mention the January 2000 incident or the fact that his father was

sentenced to five years. In fact, Klobucista had testified to details of the January 2000

incident, but had understandably led the IJ to think that this incident had not been mentioned

because Klobucista recounted its details when testifying about the 1996 incident.

       The fact remains that, as the IJ noted, there are discrepancies between the testimony

and the asylum application, although one is perhaps not precisely the discrepancy noted by

the IJ. If, as appears, the January 2000 incident was recounted in the testimony, it was

mistakenly stated to have occurred in 1996. And the IJ was quite correct to note that the

testimony omitted the application’s report of the father’s five-year sentence, which occurred

in the aftermath of the January 2000 incident.

       Even if the IJ was mistaken that Klobucista did not testify about the January 2000

incident, but simply confused it with the 1996 incident, remand on that basis would be futile

because we can confidently predict that the agency would adhere to its credibility

determination absent this error, which was provoked by the confusion in Klobucista’s

testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d at 338.

       Because the only evidence of a threat to Klobucista’s life or freedom depended on

Klobucista’s credibility, the agency’s adverse credibility determination was fatal to his

application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148,


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156 (2d Cir. 2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).

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

in part. As we have completed our review, any stay of removal previously granted in this

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

DISMISSED as moot.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, Clerk of Court




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