         09-3305-ag
         Jakaj v. Holder
                                                                                           BIA
                                                                                      Rohan, IJ
                                                                                   A094 046 302
                                                                                   A094 048 713

                                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 4 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                REENA RAGGI,
10                       Circuit Judges.
11       _______________________________________
12
13       ARDIANA JAKAJ, KOL JAKAJ,
14                Petitioners,
15
16                         v.                                     09-3305-ag
17                                                                NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Michael P. Diraimondo, Melville, New
24                                       York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General, Anthony P. Nicastro, Senior
28                                       Litigation Counsel, D. Nicholas
29                                       Harling, Trial Attorney, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       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        Petitioners Ardiana and Kol Jakaj, both natives and

6    citizens of Albania, seek review of a July 27, 2009, order

7    of the BIA, affirming the October 23, 2007, decision of

8    Immigration Judge (“IJ”) Patrician A. Rohan, denying their

9    applications for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).      In re Jakaj,

11   Nos. A094 046 302, A094 048 713 (B.I.A. July 27, 2009),

12   aff’g Nos. A094 046 302, A094 048 713 (Immig. Ct. N.Y. City

13   Oct. 23, 2007).     We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we review both

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

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

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

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       Substantial evidence supports the agency’s adverse

22   credibility determination.     As the IJ found, Kol’s testimony

23   conflicted with both the record and Ardiana’s testimony.

24   First, Kol testified that he never received documents

25   confirming his 2003 arrest, but Ardiana testified that they

                                     2
1    did receive such documents.    Second, with regard to the

2    medical report, Kol testified that they did not receive any

3    documents from the doctor who treated them after their

4    release from detention.   When questioned about two letters

5    from their doctor in the record, Kol explained that after he

6    and his sister arrived in the United States, his father

7    contacted the doctor to write the letters.       However, the

8    letters were dated the day of the alleged treatment, before

9    Petitioners arrived in the United States.       Moreover, Ardiana

10   testified that they received the documents days after the

11   treatment.   The agency was entitled to rely on these

12   discrepancies in finding Petitioners not credible.         See 8

13   U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534

14   F.3d 162, 167 (2d Cir. 2008). Furthermore, the IJ reasonably

15   declined to credit Petitioners’ explanations for the

16   inconsistencies.   See Majidi v. Gonzales, 430 F.3d 77, 80-81

17   (2d Cir. 2005).

18       Because Petitioners fail to challenge the adverse

19   inference that the IJ drew from their failure to provide

20   sufficient evidence corroborating their claims, we deem that

21   argument waived.   See Yueqing Zhang v. Gonzales, 426 F.3d

22   540, 541 n.1, 545 n.7 (2d Cir. 2005).       Accordingly,

23   substantial evidence supports the agency’s adverse

24   credibility determination.    See 8 U.S.C

25   § 1158(b)(1)(B)(iii).


                                    3
1        Finally, the BIA did not err in declining to consider

2    the supplemental report that Petitioners submitted on

3    appeal, as it was not in the record before the IJ and the

4    BIA may “not engage in factfinding in the course of deciding

5    appeals.”     8 C.F.R. § 1003.1(d)(3)(iv); Xian Tuan Ye v. DHS,

6    446 F.3d 289, 296 (2d Cir. 2006).

7        Because the only evidence of a threat to Petitioners’

8    lives or freedom depended upon their credibility, the

9    adverse credibility determination in this case necessarily

10   precludes success on their claims for asylum, withholding of

11   removal, and CAT relief.     See Paul v. Gonzales, 444 F.3d

12   148, 156 (2d Cir. 2006).     This Court need not reach the IJ’s

13   alternative findings that Petitioners failed to meet their

14   burden of proof irrespective of their credibility.

15       For the foregoing reasons, the petition for review is

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

17   removal that the Court previously granted in this petition

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

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

20   oral argument in this petition is DENIED in accordance with

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

22   Circuit Local Rule 34.1(b).
23
24                                 FOR THE COURT:
25                                 Catherine O’Hagan Wolfe, Clerk
26
27



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