17-649-ag
Pllumaj v. Whitaker


                                  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 19th day of December, two thousand eighteen.

PRESENT:              JOSÉ A. CABRANES,
                      ROSEMARY S. POOLER,
                      CHRISTOPHER F. DRONEY,
                                   Circuit Judges.



FLORENC PLLUMAJ,

                             Petitioner,                    17-649-ag

                             v.

MATTHEW J. WHITAKER, ACTING UNITED STATES
ATTORNEY GENERAL,

                             Respondent.



FOR PETITIONER:                                          GREGORY MAROTTA, Vernon, NJ.



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FOR RESPONDENT:                                             COLETTE J. WINSTON, Trial Attorney,
                                                            Office of Immigration Litigation, United
                                                            States Department of Justice, Civil
                                                            Division (Janette L. Allen, Senior
                                                            Litigation Counsel, on the brief), for Chad A.
                                                            Readler, Acting Assistant Deputy
                                                            Attorney General, United States
                                                            Department of Justice, Civil Division,
                                                            Washington, D.C.

        Petition for review of an order of the Board of Immigration Appeals.

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.

        Petitioner Florenc Pllumaj (“Pllumaj”), a native and citizen of Albania, seeks review of a
February 8, 2017 decision of the Board of Immigration Appeals (“BIA”) affirming an October 19,
2015 decision of an Immigration Judge (“IJ”) denying Pllumaj’s application for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). In re Florenc Pllumaj, No.
A205 879 871 (B.I.A. Feb. 8, 2017), aff’g No. A205 879 871 (Immig. Ct. N.Y. City Oct. 19, 2015).
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.

         Under the circumstances of this case, we have reviewed the IJ’s adverse credibility
determination as supplemented by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008). In assessing an applicant’s credibility, the agency
must “[c]onsider[ ] the totality of the circumstances,” and may base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” the plausibility of his account, and
inconsistencies or omissions in his or his witnesses’ statements, “without regard to whether” they go
“to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. “[A]lthough IJs may rely on non-material
omissions and inconsistencies, . . . [a] trivial inconsistency or omission that has no tendency to
suggest a petitioner fabricated his or her claim will not support an adverse credibility determination.”




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Hong Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018).1 Here, substantial evidence supports the
adverse credibility determination.

         The BIA concluded that Pllumaj’s merits hearing testimony concerning an October 2012
attack—specifically, that his assailants mentioned his membership in the Christian Democratic Party
of Albania (“PKD”)—was inconsistent with the account he provided during his credible fear
interview. See Certified Admin. R. 4 (observing that, during credible fear interview, Pllumaj stated
that his assailants “did not say anything to him at all and just beat him”). This is not a “trivial
inconsistency or omission,” as it goes to the heart of Pllumaj’s asylum claim.

        In addition, the agency reasonably relied on inconsistencies concerning the year Pllumaj
allegedly joined the PKD, and the identity of the attackers involved in the two incidents of past
persecution underlying his claim. See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any
inconsistency or omission in making an adverse credibility determination as long as the ‘totality of
the circumstances’ establishes that an asylum applicant is not credible.” (quoting 8 U.S.C. §
1158(b)(1)(B)(iii); emphasis in original)). The agency reasonably concluded that Pllumaj did not
provide compelling explanations for these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to
credit his testimony.” (internal quotation marks omitted; emphasis in original)).

         The IJ’s credibility determination is also supported by Pllumaj’s testimony concerning the
documentary record. For instance, Pllumaj failed to provide a compelling explanation for why his
and his father’s PKD party membership cards were numbered sequentially despite them having
joined the party several years apart. See id. And though Pllumaj claimed to have done election-related
work for the PKD, he could not accurately describe the PKD symbol on his membership card. See
Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (noting that the agency is entitled to rely on an
“inference . . . made available to the factfinder by record facts, or even a single fact, viewed in the
light of common sense and ordinary experience”).

        Finally, the agency reasonably relied on Pllumaj’s demeanor. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Pllumaj does not dispute that he was hesitant and nonresponsive to questions on cross examination.
Instead, he contends that his shift in demeanor resulted from difficult questioning. In light of the
inherent difficulty of assessing such claims from a cold record, and in the absence of a more
compelling explanation, we defer to the IJ’s demeanor finding. Zhou Yun Zhang v. U.S. INS, 386 F.3d
66, 73 (2d Cir. 2004) (observing that an IJ “who assesses testimony together with witness demeanor



    1
      Gao issued after briefing in this case was complete, but the parties submitted supplemental
briefing on its applicability.

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is in the best position to discern, often at a glance, whether a question that may appear poorly
worded on a printed page was, in fact, confusing or well understood by those who heard it . . . [and]
whether a witness who hesitated in a response was nevertheless attempting truthfully to recount
what he recalled of key events or struggling to remember the lines of a carefully crafted ‘script’”),
overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

        Given the inconsistency and demeanor findings relating to Pllumaj’s political activities and
alleged harm, the totality of the circumstances supports the IJ’s adverse credibility determination. See
Xiu Xia Lin, 534 F.3d at 165-67. The adverse credibility determination is dispositive because the
claims for asylum, withholding of removal, and CAT relief are all based on the same discredited
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

                                           CONCLUSION

        For the foregoing reasons, the petition for review is DENIED.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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