     10–4747-ag (L)
     Berisha v. Holder
                                                                                     BIA
                                                                              Vomacka, IJ
                                                                             A099 938 817
                                                                             A099 938 818
                          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 Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 20th day of August, two thousand thirteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _______________________________________
12
13   BURIM BERISHA, ARTE BERISHA,
14                 Petitioners,
15
16                       v.                                  10-4747-ag (L);
17                                                           11-3020-ag (Con)
18                                                           NAC
19   ERIC H. HOLDER, JR., UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   ______________________________________
23
24
25
26
27
      1   FOR PETITIONERS:        Sokol Braha, Esq., New York, New
      2                           York.
      3
      4   FOR RESPONDENT:         Tony West, Assistant Attorney
      5                           General; Thomas B. Fatouros, Senior
      6                           Litigation Counsel; James A. Hurley,
      7                           Attorney, Office of Immigration
      8                           Litigation, United States Department
      9                           of Justice, Washington D.C.
     10
     11       UPON DUE CONSIDERATION of these petitions for review of

     12   Board of Immigration Appeals (“BIA”) decisions, it is hereby

     13   ORDERED, ADJUDGED, AND DECREED that the petitions for review

     14   are DENIED.

15            Petitioners Burim Berisha (“Berisha”) and Arte

16        Berisha,1 both citizens of Kosovo, seek review of an October

17        25, 2010 decision of the BIA affirming the August 10, 2009

18        decision of Immigration Judge (“IJ”) Alan Vomacka, denying

19        asylum, withholding of removal, and relief under the

20        Convention Against Torture (“CAT”).   In re Burim Berisha,

21        Arte Berisha, Nos. A099 938 817/818 (B.I.A. Oct. 25, 2010),

22        aff’g Nos. A099 938 817/818 (Immig. Ct. N.Y.C. Aug. 10,

23        2009).   Petitioners also seek review of a July 7, 2011

24        decision of the BIA denying reopening.   In re Burim Berisha,

25        Arte Berisha Nos. A099 938 817/818 (B.I.A. July 7, 2011).


              1
               Because Arte Berisha’s petition is derivative of her
          husband’s application, our reason for denying Burum Berisha
          review necessarily extends to her as well.
                                        2
 1   We assume the parties’ familiarity with the underlying facts

 2   and procedural history.

 3        Under the circumstances of this case, we have reviewed

 4   both the BIA’s and IJ’s opinions.       See Zaman v. Mukasey, 514

 5   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

 6   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

 7   see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d

 8   Cir. 2008).

 9   I.   October 2010 Decision

10        For asylum applications, like Berisha’s, governed by

11   the REAL ID Act, the agency may, “[c]onsidering the totality

12   of the circumstances, . . . base a credibility finding on

13   . . . the consistency between the applicant’s or witness’s

14   written or oral statements, . . . the internal consistency

15   of each such statement, [and] the consistency of such

16   statements with other evidence of record, . . . without

17   regard to whether an inconsistency . . . goes to the heart

18   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii);

19   Xiu Xia Lin, 534 F.3d at 165-66.

20        Substantial evidence supports the agency’s adverse

21   credibility finding as to Berisha.       The agency relied

22   primarily on two inconsistencies in the record.       First,


                                     3
 1   Berisha stated in his asylum application that he found the

 2   windows of his car shattered, but but later testified that,

 3   in addition to the broken windows, the car had flat tires

 4   and scratches.   Berisha sought to explain this

 5   inconsistency by stating that the word “destroyed,”

 6   purportedly used in his asylum application, implicitly

 7   encompassed the flat tires.   But the agency reasonably

 8   declined to credit this explanation, as the application did

 9   not in fact use the word “destroyed.”      See Majidi v.

10   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

11   the agency need not credit an applicant’s explanations for

12   inconsistent testimony unless those explanations would

13   compel a reasonable fact-finder to do so).      Second, although

14   Berisha testified that he received medical treatment for

15   five days following his March 2006 assault, neither his

16   asylum application nor his father’s affidavit makes any

17   reference to medical treatment.      The agency was not required

18   to credit Berisha’s explanations, i.e., that he thought

19   information concerning his treatment was covered by the

20   medical report and that the oversight was the result of

21   preparer’s error, because the medical report was obtained in

22   February 2008, well after the submission of the asylum

23   application in May 2007.   See id.

                                   4
 1       Having adversely assessed Berisha’s credibility, the

 2   agency did not err by declining to credit Berisha’s

 3   documentation of his membership in the Democratic League of

 4   Kosovo (“LDK”) because the documents were not issued

 5   contemporaneously with his asserted membership in the LDK

 6   and were obtained for the purpose of his immigration

 7   hearing.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 8   F.3d 315, 342 (2d Cir. 2006) (the weight afforded to the

 9   applicant’s evidence in proceedings lies largely within the

10   discretion of the IJ).

11       Given the noted inconsistencies, omissions, and lack of

12   corroboration, the agency’s adverse credibility

13   determination is supported by substantial evidence and

14   provided an adequate basis for denying asylum (including

15   humanitarian asylum), withholding of removal, and CAT

16   relief.    See Xiu Xia Lin, 534 F.3d at 165-66; Paul v.

17   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

18   II. July 2011 Decision

19       We review the BIA’s denial of a motion to reopen for

20   abuse of discretion, remaining mindful of the Supreme

21   Court’s admonition that motions to reopen are “disfavored.”

22   Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006)

23   (internal quotation marks omitted).

                                    5
 1       In support of his motion to reopen, Berisha provided

 2   documentary evidence demonstrating that the LDK was no

 3   longer part of the ruling coalition government in Kosovo and

 4   argued that he had an increased fear of persecution because

 5   Kosovo was governed by the Democratic Party of Kosovo

 6   (“PDK”), whose members had previously harmed him.    The BIA

 7   did not abuse its discretion in declining to reopen in light

 8   of the underlying adverse credibility determination which

 9   was based in part on the questionable veracity of Berisha’s

10   LDK party membership documentation.   See Qin Wen Zheng v.

11   Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007) (concluding

12   that the BIA did not abuse its discretion in denying a

13   motion to reopen supported by what was alleged to be

14   previously unavailable evidence regarding changed country

15   conditions, because there had been a previous adverse

16   credibility finding in the underlying asylum hearing).

17       For the foregoing reasons, the petitions for review are

18   DENIED.   As we have completed our review, any stays of

19   removal that the Court previously granted in these petitions

20   are VACATED, and any pending motions for stays of removal in

21   these petitions are DISMISSED as moot.   Any pending requests

22   for oral argument in these petitions are DENIED in


                                   6
1   accordance with Federal Rule of Appellate Procedure 34(a)(2)

2   and Second Circuit Local Rule 34.1(b).

3

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6




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