     13-4432
     Rexho v. Holder
                                                                                    BIA
                                                                          Christensen, IJ
                                                                   A089 915 662/663/664


                            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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 12th day of March, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11   _____________________________________
12
13   AIDA REXHO, AKA AIDA META, NAZIF
14   REXHO, MEGI REXHO,
15                 Petitioners,
16
17                     v.                                13-4432
18                                                       NAC
19
20   ERIC H. HOLDER, JR., UNITED
21   STATES ATTORNEY GENERAL,
22                 Respondent.
23   _____________________________________
24
 1   FOR PETITIONERS:            Sokol Braha, New York, New York;
 2                               Adrian Spirollari, Brooklyn, New York.
 3
 4   FOR RESPONDENT:             Sheri R. Glaser, Trial Attorney,
 5                               Office of Immigration Litigation,
 6                               [Jamie M. Dowd, Senior Litigation
 7                               Counsel; Stuart F. Delery, Assistant
 8                               Attorney General, on the brief],
 9                               United States Department of Justice,
10                               Washington D.C.
11
12          UPON DUE CONSIDERATION of this petition for review of a

13   Board of Immigration Appeals (“BIA”) decision, it is hereby

14   ORDERED, ADJUDGED, AND DECREED that the petition for review

15   is DENIED.

16          Petitioners,     natives   and    citizens     of    Albania,      seek

17   review of an October 24, 2013, decision of the BIA affirming

18   the    October    21,   2011,   decision    of   an   Immigration        Judge

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

20   pursuant to the Convention Against Torture (“CAT”).                      In re

21   Aida    Rexho,    Nazif    Rexho,   Megi     Rexho,        Nos.   A089     915

22   662/663/664 (B.I.A. Oct. 24, 2013), aff’g Nos. A089 915

23   662/663/664 (Immig. Ct. N.Y.C. Oct. 21, 2011).                    We assume

24   the    parties’    familiarity    with     the   underlying       facts    and

25   procedural history in this case.

26          Under the circumstances of this case, we have reviewed

27   the IJ’s decision as modified by the BIA decision.                  See Xue
1    Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

2    Cir. 2005).        The applicable standards of review are well

 3   established.       See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

 4   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 5       For asylum applications like Petitioners’, governed by

 6   the REAL ID Act of 2005, the agency may, “[c]onsidering the

 7   totality     of       the   circumstances,”         base      a    credibility

 8   determination on inconsistencies in the asylum applicant’s

 9   statements      and     other   record       evidence   “without     regard   to

10   whether” they go “to the heart of the applicant’s claim.”                      8

11   U.S.C. § 1158(b)(1)(B)(iii).                 “We defer . . . to an IJ’s

12   credibility determination unless, from the totality of the

13   circumstances, it is plain that no reasonable fact-finder

14   could make such an adverse credibility ruling.”                     Xiu Xia Lin

15   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

16   Substantial        evidence        supports       the    agency’s        adverse

17   credibility determinations.

18       First, the agency reasonably relied on Aida’s omission

19   from her asylum application of her later assertion that she

20   and her family were threatened and she was beaten, in part,

21   because    of     her    husband     Nazif’s      ethnicity       (and   related
                                              3
1    political activity).            See id. at 166 n.3 (providing that for

2    purposes    of    analyzing      a   credibility          determination,         “[a]n

3    inconsistency       and    an     omission        are    .    .     .     functionally

4    equivalent”).        The agency was not compelled to credit her

5    explanation       that    she    only      mentioned         in    her    application

 6   events that had happened to her.                    See Majidi v. Gonzales,

 7   430 F.3d 77, 80-81 (2d Cir. 2005) (holding that the agency

 8   need not credit an applicant’s explanations for inconsistent

 9   testimony        unless     those         explanations            would     compel   a

10   reasonable fact-finder to do so).                       She testified that she

11   was   a    victim    of    some      of     the    ethnicity-based            threats,

12   including an incident when two men wielded knives while

13   threatening to kill her and Nazif, and she testified that

14   her alleged beating was due, in part, to Nazif’s ethnicity.

15         The agency also reasonably relied on several additional

16   inconsistencies in the record.                    Aida’s asylum application

17   listed     Nazif’s       ethnicity        as   “Albanian,”           while    Nazif’s

18   application listed his ethnicity as “Cham.”                             Further, Aida

19   asserted that she was knocked unconscious after allegedly

20   being beaten, that she stayed overnight at a hospital, and

21   that she reported the beating to police approximately three
                                                4
 1   weeks after the attack.            However, other record evidence

 2   indicated        inconsistently      that   she      did     not    lose

 3   consciousness, spend the night at the hospital, or report

 4   her attack to police within three weeks.           The agency was not

 5   required    to    credit   the    explanations    provided    for   these

 6   inconsistencies.      See Id.

 7       Given the inconsistencies, the agency reasonably found

 8   Petitioners not credible.           That finding is dispositive of

 9   asylum, withholding of removal, and CAT relief.              See Paul v.

10   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).               Because the

11   agency’s adverse credibility is dispositive of all forms of

12   relief, we do not reach the agency’s alternative basis for

13   denying Nazif’s asylum claim – his failure to timely file

14   his asylum application.

15       For the foregoing reasons, the petition for review is

16   DENIED.

17                                      FOR THE COURT:
18                                      Catherine O’Hagan Wolfe, Clerk
19
20




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