     17-2608
     Mecaj v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A200 589 904

                          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 6th day of June, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            BARRINGTON D. PARKER,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   KLAUDIO MECAJ,
14            Petitioner,
15
16                   v.                                          17-2608
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Gregory Marotta, Esq., Vernon, NJ.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Shelley R. Goad,
27                                    Assistant Director; Jennifer A.
28                                    Singer, Trial Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    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      Klaudio    Mecaj,      a   native   and    citizen    of

6    Albania, seeks review of a July 28, 2017, decision of the BIA

7    affirming a January 26, 2017, decision of an Immigration Judge

8    (“IJ”) denying asylum, withholding of removal, and relief

9    under the Convention Against Torture (“CAT”).                 In re Klaudio

10   Mecaj, No. A200 589 904 (B.I.A. July 28, 2017), aff’g No.

11   A200 589 904 (Immig. Ct. N.Y. City Jan. 26, 2017).                 We assume

12   the   parties’     familiarity       with    the   underlying     facts    and

13   procedural history in this case.

14         Under the circumstances of this case, we have reviewed

15   the decision of the IJ as supplemented by the BIA.                  See Yan

16   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                        The

17   applicable      standards       of   review      are   well     established.

18   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

19   510, 513 (2d Cir. 2009); Pierre v. Holder, 588 F.3d 767, 772

20   (2d Cir. 2009).

21         Mecaj argues that the IJ was biased and deprived him of

22   due   process    by    (1) setting          an   arbitrary    deadline     for


                                           2
 1   corroborating evidence, (2) questioning him too aggressively,

 2   (3) relying on the omission of a detention from his asylum

 3   application in finding him not credible, and (4) refusing to

 4   credit    Dr.    Bernd   Fischer’s    expert     affidavit    on   Albania.

 5   Mecaj has failed to establish bias.

 6          “To establish a violation of due process, an alien must

 7   show that []he was denied a full and fair opportunity to

 8   present h[is] claims or that [he was] otherwise deprived . .

 9   . of fundamental fairness.”               Burger v. Gonzales, 498 F.3d

10   131,    134     (2d   Cir.   2007)   (internal    quotation    marks   and

11   citations omitted).          Remand may be required “when an IJ’s

12   conduct results in the appearance of bias or hostility such

13   that we cannot conduct a meaningful review.”            Ali v. Mukasey,

14   529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam v. Gonzales,

15   469 F.3d 53, 55 (2d Cir. 2006)); see also Guo-Le Huang v.

16   Gonzales, 453 F.3d 142, 148 (2d Cir. 2006).

17          “[A]n IJ has broad discretion to set and extend filing

18   deadlines,” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.

19   2008), and when “an application or document is not filed

20   within the time set by the [IJ], the opportunity to file that

21   application or document shall be deemed waived,” 8 C.F.R.

22   § 1003.31(c).         The IJ provided Mecaj almost two years to


                                           3
1    gather    and    submit   corroborating       evidence,    and    the    late

2    evidence could have been obtained before the deadline and

3    thus could have been timely filed.                 Counsel’s explanation

4    that she followed the default deadline in the Immigration

5    Court    Practice   Manual    is     unavailing     because     the   Manual

6    permits IJs to set their own deadlines and warns that failure

7    to     comply    with     those    deadlines       “may    have       serious

8    consequences,”      such     as    the      preclusion     of     evidence.

9    Immigration      Court    Practice        Manual   §   3.1(b),     (d)(ii).

10   Accordingly, we find no abuse of discretion or bias in the

11   IJ’s decision declining to admit Mecaj’s late-filed evidence.

12          Nor did the IJ abuse his discretion or exhibit bias in

13   questioning Mecaj.        “[A]n IJ is not merely the fact finder

14   and adjudicator, but also has an obligation to establish and

15   develop the record.”         Islam, 469 F.3d at 55.             “During the

16   course of developing a sound and useful record, an IJ must,

17   when    appropriate,      question    an    applicant     in    order,    for

18   example, to probe inconsistencies and develop the relevant

19   facts.”    Id.     Mecaj concedes that the IJ’s questioning was

20   not antagonistic, and a review of the record reveals that the

21   IJ posed questions relevant to Mecaj’s claims for relief.

22          There is also no merit to Mecaj’s contention that the IJ


                                           4
1    exhibited bias by relying on Mecaj’s omission of a brief

2    detention from the asylum application.             An IJ may consider

3    an omission “as long as the ‘totality of the circumstances’

4    establishes that an asylum applicant is not credible.”               Xiu

5    Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (quoting

6    8 U.S.C. § 1158(b)(1)(B)(iii)).           Further, it was reasonable

7    for the IJ to find this omission significant because the

8    asylum application form asks whether the applicant has ever

9    been detained and, if so, instructs the applicant to explain

10   the circumstances, Mecaj, however, did not list his own

11   detention for protesting despite discussing other Democratic

12   Party members being prevented from protesting.               See Hong Fei

13   Gao v. Sessions, 891 F.3d 67, 78-79 (2d Cir. 2018) (“[I]n

14   assessing the probative value of the omission of certain

15   facts, an IJ should consider whether those facts are ones

16   that    a   credible   petitioner       would   reasonably    have   been

17   expected to disclose under the relevant circumstances.”).

18          Finally, the IJ did not err or exhibit bias in giving

19   the expert affidavit diminished evidentiary weight because

20   Dr. Fischer did not testify and thus was not subject to cross-

21   examination.     See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.

22   2013) (“We generally defer to the agency’s evaluation of the


                                         5
1    weight to be afforded an applicant’s documentary evidence.”);

 2   see also Matter of H-L-H-, 25 I. & N. Dec. 209, 215-16 & n.5

 3   (BIA 2010) (declining to credit village committee notices

 4   that     were   unauthenticated,   unsigned,   and   prepared   for

 5   purposes of removal proceedings), overruled on other grounds

 6   by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir.

 7   2012).     Regardless, as the BIA noted, even if credited, the

 8   affidavit did not independently corroborate Mecaj’s asylum

 9   claim.

10          Accordingly, we deny the petition because Mecaj has not

11   shown bias or error in the IJ’s decision denying relief on

12   credibility and lack of corroboration grounds.         See Burger,

13   498 F.3d at 134; see also Ali, 529 F.3d at 490.          There is

14   nothing further for us to address as Mecaj does not otherwise

15   challenge the credibility and corroboration rulings, and he

16   did not exhaust any challenge to the adverse credibility

17   finding on appeal to the BIA.      See Yueqing Zhang v. Gonzales,

18   426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that

19   petitioner abandons issues and claims not raised in his

20   brief); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

21   119-22 (2d Cir. 2007) (holding that issue exhaustion is

22   mandatory).


                                        6
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe
11                                 Clerk of Court




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