         08-3112-ag
         Zhabjaku v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A096 018 143
                               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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of February,two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PETER W. HALL,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       GEZIM ZHABJAKU,
15                Petitioner,
16
17                            v.                                08-3112-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                Theodore N. Cox, New York, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Lyle D. Jentzer, Senior
28                                      Litigation Counsel; Zoe J. Heller,
29                                      Civil Division, Office of
30                                      Immigration Litigation, U.S.
31                                      Department of Justice, Washington
32                                      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

 4   is DISMISSED in part and DENIED in part.

 5       Petitioner Gezim Zhabjaku, a native and citizen of

 6   Albania, seeks review of the June 11, 2008, decision of the

 7   BIA denying his motion to reopen and the February 14, 2005,

 8   decision of the BIA affirming the December 5, 2003, decision

 9   of Immigration Judge (“IJ”) Alan A. Vomacka denying his

10   application for asylum, withholding of removal, and CAT

11   relief.   In re Gezim Zhabjaku, No. A096 018 143 (B.I.A. June

12   11, 2008); In re Gezim Zhabjaku, No. A096 018 143 (B.I.A.

13   Feb. 14, 2005), aff’g No. A096 018 143 (Immig. Ct. N.Y.C.

14   Dec. 5, 2003). We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       As an initial matter, Zhabjaku’s challenges to the

17   BIA’s denial of his motion to reopen based on his

18   eligibility to adjust status are moot because his

19   applications for adjustment of status and a waiver of

20   inadmissibility have been adjudicated and denied.   His

21   petition for review is dismissed to that extent. See Church

22   of Scientology of Cal. v. United States, 506 U.S. 9, 12


                                   2
 1   (1992) (“[I]f an event occurs while a case is pending on

 2   appeal that makes it impossible for the court to grant ‘any

 3   effectual relief whatever’ to a prevailing party, the appeal

 4   must be dismissed.”)

 5       Under the circumstances of this case, we review the

 6   IJ’s decision.     See Mei Chai Ye v. U.S. Dep’t of Justice,

 7   489 F.3d 517, 523 (2d Cir. 2007).    The applicable standards

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

 9   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

10   (2d Cir. 2009).

11       Substantial evidence supports the IJ’s adverse

12   credibility determination.    The IJ reasonably relied on

13   several inconsistencies in the record that went to the heart

14   of Zhabjaku’s claim.     See Majidi v. Gonzales, 430 F.3d 77,

15   79-81 (2d Cir. 2005).    For example, at his airport and

16   credible fear interviews, Zhabjaku explicitly stated that he

17   had never been arrested, but at his merits hearing he

18   testified that he had been arrested and beaten several

19   times.   See id.

20       Further, Zhabjaku claimed in his asylum application

21   that he and his family were among the first members of the

22   Democratic Party in the early 1990s, but he testified that


                                     3
 1   he and his father did not join the Party until 1996.     The

 2   agency was not compelled to credit Zhabjaku’s explanation

 3   that he was still relatively young at the time he joined the

 4   Party; he did not explain why he did not join the youth wing

 5   of the Party or why his father did not join earlier.     In

 6   addition, the IJ reasonably relied on the fact that Zhabjaku

 7   stated in his asylum application that he supported Barit

 8   Borici, the Legality Party candidate, in the 2000 municipal

 9   elections, whereas Zhabjaku testified that he supported

10   Astrit Bushati, the Democratic Party candidate in that

11   election.   The agency was not compelled to credit Zhabjaku’s

12   explanation that this was due to a typographical or

13   translation error.   See Id. at 80-81.

14       In addition, the IJ reasonably found that Zhabjaku’s

15   failure to provide corroborating evidence supported an

16   adverse credibility determination.   See Biao Yang v.

17   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).   Specifically,

18   the IJ reasonably noted the absence of any statement from

19   Zhabjaku’s family members (including his father, who was

20   supposedly involved in Democratic Party political

21   activities), and Zhabjaku’s failure to present any medical

22   records to corroborate his testimony that he received

23   medical treatment.   See id.

                                    4
 1       Zhabjaku argues that the IJ engaged in speculation in

 2   making certain additional adverse credibility findings.

 3   However, we can confidently predict that the IJ would have

 4   reached the same decision in any event because of the

 5   overwhelming inconsistencies in the record supporting the

 6   IJ’s ultimate adverse credibility determination.    See Diallo

 7   v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d Cir.

 8   2008).   Because the agency’s adverse credibility

 9   determination was supported by substantial evidence, it did

10   not err in relying on that determination to deny Zhabjaku’s

11   applications for asylum, withholding of removal, and CAT

12   relief, all of which claims were based on the same factual

13   predicate.   See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d

14   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

15   520, 523 (2d Cir. 2005).

16       For the foregoing reasons, the petition for review is

17   DISMISSED in part and DENIED in part.   As we have completed

18   our review, any stay of removal that the Court previously

19   granted in this petition is VACATED, and any pending motion

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

21

22



                                   5
1   Any pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate

3   Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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