         11-4895 (L)
         Rroku v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A097 535 212
                            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 28th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNIS JACOBS,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       MARJAN RROKU, AKA JETON MIRAKAJ,
14                Petitioner,
15
16                         v.                                   11-4895 (L),
17                                                              12-3857 (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Joshua Bardavid, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Cindy S. Ferrier,
28                                     Assistant Director; Lindsay M.
29                                     Murphy, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1          UPON DUE CONSIDERATION of these petitions for review of

 2   decisions of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review under 11-4895 is DISMISSED in part and DENIED in

 5   part, and the petition for review under 12-3857 is DENIED.

 6          Marjan Rroku, a native and citizen of Albania, seeks

 7   review of a November 18, 2011, decision of the BIA affirming

 8   the July 19, 2011, decision of Immigration Judge (“IJ”)

 9   Steven Abrams, which pretermitted his application for asylum

10   and denied his application for withholding of removal and

11   relief under the Convention Against Torture (“CAT”), and a

12   September 28, 2012, BIA decision denying his motion to

13   reopen.    In re Marjan Rroku, No. A097 535 212 (B.I.A. Nov.

14   18, 2011), aff’g No. A097 535 212 (Immig. Ct. N.Y. City July

15   19, 2011); In re Marjan Rroku, No. A097 535 212 (B.I.A.

16   Sept. 28, 2012).    We assume the parties’ familiarity with

17   the underlying facts and procedural history in this case.

18   I.     Petition under 11-4895

19          Under the circumstances of this case, we have reviewed

20   the decision of the IJ as modified and supplemented by the

21   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

22   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,



                                     2
 1   522 (2d Cir. 2005).     The applicable standards of review are

 2   well-established.     See 8 U.S.C. § 1252(b)(4)(B); see also

 3   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 4       A.   Asylum

 5       As Rroku concedes, we lack jurisdiction to review the

 6   pretermission of his asylum application unless he raises a

 7   constitutional claim or question of law.     See 8 U.S.C.

 8   § 1252(a)(2)(C),(D).     Rroku argues that the agency committed

 9   an error or law in finding that the Government’s request for

10   documents from Albania did not breach the confidentiality of

11   the asylum application.     This argument is frivolous.

12       A disclosure breaches confidentiality of an asylum

13   application if it allows a third party to link the identity

14   of the applicant to “facts or allegations that are

15   sufficient to give rise to a reasonable inference that the

16   applicant has applied for asylum.”     Zhen Nan Lin v. U.S.

17   Dep’t of Justice, 459 F.3d 255, 263 (2d Cir. 2006) (internal

18   citation omitted).     The IJ found that the Government’s

19   request did not “state or imply” that Rroku had applied for

20   asylum, and thus applied the correct standard.     Moreover,

21   Rroku’s argument that the Government’s disclosure warrants

22   an automatic remand so that he can assert a new basis for


                                     3
 1   relief is unexhausted and we lack jurisdiction to consider

 2   it.   See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d

 3   113, 119 (2d Cir. 2006).     Because Rroku fails to raise an

 4   exhausted and colorable constitutional claim or question of

 5   law, we lack jurisdiction to review the agency’s denial of

 6   asylum.    See 8 U.S.C. §§ 1158(a)(2)(B), (a)(3),

 7   1252(a)(2)(D).

 8         B.   Withholding of Removal

 9          For applications such as Rroku’s, governed by the

10   amendments made to the Immigration and Nationality Act by

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

12   totality of the circumstances,” base a credibility finding

13   on the applicant’s “demeanor, candor, or responsiveness,”

14   the plausibility of her account, and inconsistencies in her

15   statements, without regard to whether they go “to the heart

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

17   1231(b)(3)(C); see also Xiu Xia Lin v. Mukasey, 534 F.3d

18   162, 167 (2d Cir. 2008).     We “defer to an IJ’s credibility

19   determination unless, from the totality of the

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

21   could make” such a ruling.     Xiu Xia Lin, 534 F.3d at 167.

22



                                     4
 1       The IJ’s credibility finding is supported by Rroku’s

 2   internally inconsistent testimony and by inconsistencies

 3   between his testimony and the testimony of his witnesses.

 4   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia

 5   Lin, 534 F.3d at 167.

 6       The IJ was not required to credit Rroku’s explanation

 7   that he lied to protect a friend.   See Majidi v. Gonzales,

 8   430 F.3d 77, 80-81 (2d Cir. 2005) (providing that the agency

 9   need not credit an applicant’s explanations for inconsistent

10   testimony unless those explanations would compel a

11   reasonable fact-finder to do so); Siewe v. Gonzales, 480

12   F.3d 160, 170 (2d Cir. 2007) (relying on the maxim to find

13   that once an IJ concludes that a document is false, he or

14   she is “free to deem suspect other documents (and to

15   disbelieve other testimony)”).

16       Furthermore, contrary to Rroku’s contention, the IJ did

17   consider the documents corroborating his employment with

18   SHIK (the Albanian intelligence agency) and his testimony

19   that a former colleague was politically opposed to both him

20   and his mentor.   Having considered that evidence, the IJ

21   reasonably found that those documents did not corroborate

22   Rroku’s testimony that the former colleague and his

23   supporters had framed Rroku for murder.   See Xiao Ji Chen v.
                                   5
 1   U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

 2   (noting that the weight to be accorded to documentary

 3   evidence lies largely within the IJ’s discretion).     Given

 4   the discrepancies between Rroku’s testimony and that of

 5   other witnesses,   Rroku’s admission that he lied during his

 6   testimony, and his conceded use of an alias to evade

 7   immigration authorities, the adverse credibility

 8   determination is supported by substantial evidence.      See

 9   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

10   534 F.3d at 167.   As the only evidence of a threat to

11   Rroku’s life or freedom depended upon his credibility, the

12   adverse credibility determination in this case necessarily

13   precludes success on his claim for withholding of removal.

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

15       C.   CAT Relief

16       Contrary to Rroku’s argument that the IJ failed to

17   adequately consider his CAT claim, the IJ reasonably found

18   that he failed to establish a likelihood that he would be

19   tortured in Albania if he were removed.   “Torture” does not

20   include “pain or suffering arising only from, inherent in or

21   incidental to lawful sanctions” unless the sanctions defeat

22   the object and purpose of the CAT.   8 C.F.R.

23   § 1208.18(a)(2).   Poor prison conditions do not constitute
                                   6
 1   torture under the CAT “unless the deficits are extreme and

 2   are inflicted intentionally rather than as a result of

 3   poverty, neglect, or incompetence.”       Pierre v. Gonzales, 502

 4   F.3d 109, 121 (2d Cir. 2007).       Although Rroku was convicted

 5   in absentia and sentenced to life imprisonment, it was a

 6   lawful sanction, as the IJ found, because Rroku submitted no

 7   evidence that his sentence in absentia was invalid, and he

 8   did not contend that the Albanian government would

 9   intentionally subject him to extreme prison conditions.       See

10   8 C.F.R. § 1208.18(a)(2)-(3); Pierre, 502 F.3d at 121.

11       The IJ also reasonably found that Rroku failed to

12   establish that he would be tortured by the family of the

13   murder victims because: (1) a member of that family

14   testified that there was no blood feud; (2) the victims’

15   family filed police reports rather then harm Rroku or his

16   family in Albania; and (3) the organization that certified

17   the blood feud issued the certification after the start of

18   the hearings and did not indicate that it had contacted the

19   family to confirm the feud.     Furthermore, Rroku’s

20   documentary evidence reflects that the Albanian government

21   has implemented measures to prevent blood feud violence.

22   Therefore, as the IJ found, Rroku failed to demonstrate that

23   the Albanian government would be unwilling or unable to

                                     7
 1   protect him from torture.    See Khouzam v. Ashcroft, 361 F.3d

 2   161, 171 (2d Cir. 2004).

 3   II. Petition under 12-3857

 4       We also deny Rroku’s challenge to the BIA’s denial of

 5   reopening, reviewing that denial for abuse of discretion.

 6   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).       A

 7   motion to reopen must be based on new evidence that “would

 8   likely change the result” of the proceedings if they were

 9   reopened.   Sanusi v. Gonzales, 445 F.3d 193, 201 (2d Cir.

10   2006) (citing In re Coelho, 20 I. & N. Dec. 464, 473 (BIA

11   1992)); see also 8 C.F.R. § 1003.2(c)(1).

12       Rroku was initially denied relief based on an adverse

13   credibility determination.   Generally, the BIA may refuse to

14   credit uncorroborated and unauthenticated evidence submitted

15   with a motion to reopen because of an adverse credibility

16   determination in an underlying proceeding, regardless of

17   whether the basis for the finding was ancillary to the

18   applicant’s current claim.    See Qin Wen Zheng v. Gonzales,

19   500 F.3d 143, 147-48 (2d Cir. 2007); see also Siewe, 480

20   F.3d at 170-71.   On this basis, the BIA reasonably rejected

21   affidavits and photographs from Rroku’s relatives.    See Qin

22   Wen Zheng, 500 F.3d at 147-48.     Our decision in Paul v.

23   Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006), is not to the
                                    8
 1   contrary because the IJ here did not find any aspect of

 2   Rroku’s testimony credible.     See 444 F.3d at 154.

 3       Rroku submitted a certificate validating the existence

 4   of a blood feud as a basis for reopening.       The IJ did not

 5   err in rejecting it because Rroku could have obtained the

 6   certificate at the time the issuing organization first

 7   learned of the alleged feud, in May 2001.       See 8 C.F.R.

 8   § 1003.2(c)(1) (providing that a motion to reopen must be

 9   supported by new, previously unavailable evidence).

10       Finally, there is some merit to Rroku’s argument about

11   the agency’s treatment of the Albanian news report of the

12   burning of his family’s home.       News reports from reliable

13   sources, like State Department reports, may be considered

14   independent of an adverse credibility determination as

15   objective evidence of persecution.       See Chhetry v. U.S.

16   Dep’t of Justice, 490 F.3d 196, 200 (2d Cir. 2007).       The BIA

17   did not separately address the Albanian news report, and it

18   may thus have abused its discretion in rejecting it as

19   tainted by the adverse credibility determination.       See Paul,

20   444 F.3d at 155-56.   However, the report would not change

21   the outcome of Rroku’s proceedings because it only

22   speculated regarding arson committed by the Carnaj family,

23   and the reputation of the report’s source, the Albanian

                                     9
 1   network Lajme, was not established.     See Chhetry, 490 F.3d

 2   at 200; Xiao Ji Chen, 471 F.3d at 342; cf. Matter of M-Z-M-

 3   R-, 26 I. & N. Dec. 28, 33 (BIA 2012) (accepting country

 4   reports, Department of State bulletins, or reputable news

 5   sources as credible evidence to establish possibility of a

 6   refugee’s relocation within his or her country of origin).

 7   Remand for consideration of the report alone would therefore

 8   be futile.    See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d

 9   Cir. 2006).

10       We express no view as to the merits of the issues

11   raised by the parties in their letters dated February 15,

12   2014 and February 27, 2014, as those matters are not

13   properly before us.

14       For the foregoing reasons, the petition for review

15   under 11-4895 is DISMISSED in part and DENIED in part, and

16   the petition under 12-3857 is DENIED.    Any pending request

17   for oral argument is DENIED in accordance with Federal Rule

18   of Appellate Procedure 34(a)(2), and Second Circuit Local

19   Rule 34.1(b).

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk
22
23




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