         11-4898
         Marku v. Holder
                                                                                           BIA
                                                                                    Mulligan, IJ
                                                                                   A077 943 948


                                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 29th day of January, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       SOKOL MARKU,
14                Petitioner,
15
16                         v.                                     11-4898
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Joshua Bardavid; New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Paul Fiorino, Senior
27                                      Litigation Counsel; John M. McAdams,
28                                      Jr., Attorney, Office of Immigration
29                                      Litigation, United States Department of
30                                      Justice, Washington, D.C.
 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 is

 4   DENIED.

 5       Petitioner Sokol Marku, a native and citizen of Albania,

 6   seeks review of an October 26, 2011, decision of the BIA

 7   affirming the July 20, 2009, decision of Immigration Judge

 8   (“IJ”) Thomas J. Mulligan denying his application for asylum,

 9   withholding of removal and relief under the Convention Against

10   Torture (“CAT”).   In re Sokol Marku, No. A077 943 948 (B.I.A.

11   Oct. 26, 2011), aff’g No. A077 943 948 (Immig. Ct. N.Y.C. July

12   20, 2009).   We assume the parties’ familiarity with the

13   underlying facts and procedural history of the case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions.    See Jigme Wangchuck v.

16   DHS, 448 F.3d 524, 528 (2d Cir. 2006).     The applicable

17   standards of review are well-established.     See 8 U.S.C.

18   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

19   162, 165-66 (2d Cir. 2008) (per curiam).

20       For asylum applications, like Marku’s, governed by the

21   REAL ID Act, the agency may, considering the totality of the

22   circumstances, base a credibility finding on an asylum


                                    2
 1   applicant’s demeanor, the plausibility of his account, and

 2   inconsistencies in the witnesses’ statements, without regard

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

 4   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

 5   64.

 6         Substantial evidence supports the agency’s determination

 7   that Marku did not testify credibly regarding his claims.     The

 8   IJ reasonably relied on inconsistencies in the record.     See

 9   8 U.S.C.   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

10   at 163-64, 166-67.   As the agency noted,   Marku’s hearing

11   testimony that he did not fly to JFK airport in March 2000 was

12   inconsistent with his subsequent affidavit, in which he

13   conceded that he had done so.   The agency reasonably declined

14   to credit Marku’s subsequent explanation that the

15   inconsistency resulted because he did not consider the March

16   2000 arrival an “entry” into the United States, see Majidi v.

17   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner

18   must do more than offer a plausible explanation for his

19   inconsistent statements to secure relief; he must demonstrate

20   that a reasonable fact-finder would be compelled to credit his

21   testimony.” (internal quotation marks omitted) (emphasis in

22   original)), particularly given that, at the hearing, the


                                     3
 1   Government did not ask Marku whether he had “entered” the

 2   United States in March 2000 but, rather, whether he had ever

 3   flown into JFK airport.

 4       Further, as the agency noted, Marku’s statement in

 5   support of his asylum application did not include the

 6   allegation that he was allegedly beaten by his friends at his

 7   workplace once they discovered his sexual orientation, an

 8   allegation that he described in his testimony on the merits of

 9   his application.   Similarly, Marku did not testify that he was

10   strangled by a police officer in Albania – an allegation he

11   included in his statement in support of his asylum application

12   – until he was prompted to by questioning from his attorney.

13   Although Marku argues that these inconsistencies are not

14   sufficient to form the basis of an adverse credibility

15   determination, under the REAL ID Act, these inconsistencies

16   provide substantial support for the agency’s adverse

17   credibility determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

18       The adverse credibility determination is further

19   supported by the IJ’s demeanor finding, to which we give

20   particular deference. See Majidi, 430 F.3d at 81 n.1; Zhou Yun

21   Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on

22   other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494


                                    4
 1   F.3d 296 (2d Cir. 2007).    Accordingly, the agency did not err

 2   in denying asylum, withholding of removal, and CAT relief.

 3   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 4       For the foregoing reasons, the petition for review is

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

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

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

 8   is DISMISSED as moot. Any pending request for oral argument in

 9   this petition is DENIED in accordance with Federal Rule of

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

11   34.1(b).

12                                FOR THE COURT:
13                                Catherine O’Hagan Wolfe, Clerk
14
15




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