         09-0764-ag
         Duka v. Holder
                                                                                         BIA
                                                                                      Hom, IJ
                                                                                A 099 599 252
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
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     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 15 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                      Circuit Judges.
11       _______________________________________
12
13       MAIR DUKA,
14                Petitioner,
15
16                        v.                                    09-0764-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., ATTORNEY GENERAL,
19       UNITED STATES DEPARTMENT OF JUSTICE,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Sam Gjoni, New York, New York.
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General; Barry J. Pettinato,
3                           Assistant Director; Julia J. Tyler,
4                           Trial Attorney, Office of
5                           Immigration Litigation, Civil
6                           Division, United States Department
7                           of Justice, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Mair Duka, a native of Yugoslavia and a

14   citizen of Macedonia, seeks review of the February 13, 2009

15   order of the BIA affirming the November 29, 2006 decision of

16   Immigration Judge (“IJ”) Sandy Hom denying his applications

17   for asylum, withholding of removal, and relief under the

18   Convention Against Torture (“CAT”).     In re Mair Duka, No. A

19   099 599 252 (B.I.A. Feb. 13, 2009), aff’g No. A 099 599 252

20   (Immig. Ct. N.Y. City Nov. 29, 2006).     We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history in this case.

23       We review the agency’s factual findings, including

24   adverse credibility determinations, under the substantial

25   evidence standard.

26   8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

27   F.3d 90, 95 (2d Cir. 2008).   We review de novo questions of



                                   2
1    law and the application of law to undisputed fact.    See

2    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

3        As an initial matter, Duka does not challenge the IJ’s

4    findings that: (1) his testimony was inconsistent regarding

5    the amount of time he was detained in 2001 while helping

6    Kosovar refugees; (2) he gave inconsistent explanations as

7    to why his persecutors referred to him as “dukat”; (3) his

8    testimony was inconsistent regarding the number of times he

9    had been detained for seven days or more; (4) his failure to

10   include the purpose of the demonstration he attended in

11   March 2004 in the written statement attached to his asylum

12   application (which he later testified was to promote the

13   establishment of an Albanian university) reflected poorly on

14   his credibility; (5) his testimony was inconsistent

15   regarding whether he was arrested at the demonstration

16   itself or at his home; and (6) his testimony that he had, on

17   one occasion, been interrogated about his membership in the

18   various organizations that planned the demonstration was

19   inconsistent with his written statement claiming that he was

20   interrogated about an alleged plan to attack the local

21   police station.   Although Duka argues generally that the IJ

22   should have overlooked the “minor discrepancies” in his

23   testimony, under the REAL ID Act, “an IJ may rely on any

24   inconsistency or omission in making an adverse credibility

                                   3
1    determination as long as the ‘totality of the circumstances’

2    establishes that the asylum applicant is not credible.”

3    Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008) (quoting 8

4    U.S.C. § 1158(b)(1)(B)(iii)); see In re J-Y-C-, 24 I. & N.

5    Dec. 260, 265 (BIA 2007) (noting that “the REAL ID Act no

6    longer requires the trier of fact to find a nexus between

7    inconsistencies and the ‘heart of the claim’”).

8    Accordingly, substantial evidence supports the IJ’s adverse

9    credibility determination.    See Shunfu Li v. Mukasey, 529

10   F.3d 141, 146 (2d Cir. 2008).

11       Duka does challenge the IJ’s finding that, based on his

12   demeanor, Duka appeared as if he “had memorized a very long

13   script, approximately nine pages of factual elements” and

14   was “unable to relate specifics when asked.”    Duka contends

15   that if he had memorized his testimony, he would not have

16   had such difficulty recalling events and testifying to them

17   accordingly.   However, the IJ did not find that Duka had

18   memorized his script perfectly, but rather that he

19   “continually reverted back to earlier testimony that he had

20   provided to the Court giving the impression to the Court

21   that he was unable to stay on course, stay on script, with

22   regard to his testimony.”    Nothing in the record compels a

23   contrary conclusion, especially because we give particular

24   deference to the trier of fact’s assessment of demeanor.

                                     4
1    See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

2        Ultimately, substantial evidence supported the IJ’s

3    adverse credibility determination.   Thus, the IJ properly

4    denied Duka’s application for asylum, withholding of

5    removal, and CAT relief because the only evidence that he

6    would be persecuted or tortured depended on his credibility.

7    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

8    F.3d 162, 167 (2d Cir. 2008); Paul v. Gonzales, 444 F.3d

9    148, 156 (2d Cir. 2006); Xiao Ji Chen v. U.S. Dep’t of

10   Justice, 434 F.3d 144, 163 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any pending motion

13   for a stay of removal in this petition is DISMISSED as moot.

14   Any pending request for oral argument in this petition is

15   DENIED in accordance with Federal Rule of Appellate

16   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
17
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21
22                               By:___________________________




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