         10-508-ag
         Nilaj v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A093 409 785
                            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 1 st day of February, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       MANDI NILAJ,
15                Petitioner,
16
17                         v.                                   10-508-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Michael P. DiRaimondo, Melville, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Blair T. O’Connor,
29                                     Assistant Director; John B. Holt,
30                                     Trial Attorney, Office of
31                                     Immigration Litigation, Civil
1                              Division, United States Department
2                              of Justice, Washington, D.C.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Mandi Nilaj, a native and citizen of Albania, seeks

9    review of a January 19, 2010 order of the BIA affirming the

10   March 21, 2008 decision of Immigration Judge (“IJ”) Barbara

11   A. Nelson, denying his application for asylum, withholding

12   of removal, and relief under the Convention Against Torture

13   (“CAT”).     In re Mandi Nilaj, No. A093 409 785 (B.I.A. Jan.

14   19, 2010), aff’g No. A093 409 785 (Immig. Ct. N.Y. City Mar.

15   21, 2008).     We assume the parties’ familiarity with the

16   underlying facts and procedural history of this case.

17       As an initial matter, although Nilaj challenges the

18   denial of relief in “asylum-only” proceedings, as opposed to

19   an actual removal order, we nonetheless have jurisdiction

20   under 8 U.S.C. § 1252(a)(1) because the denial of relief in

21   these circumstances is the functional equivalent of a

22   removal order.     See Kanacevic v. INS, 448 F.3d 129, 134 (2d

23   Cir. 2006).     Where the BIA “agrees with the IJ’s conclusion

24   that a petitioner is not credible and . . . emphasizes


                                     2
1    particular aspects of that decision,” we review “both the

2    BIA’s and IJ’s opinions–or more precisely, we review the

3    IJ’s decision including the portions not explicitly

4    discussed by the BIA.”     Yun-Zui Guan v. Gonzales, 432 F.3d

5    391, 394 (2d Cir. 2005).     The applicable standard of review

6    is well-established. See 8 U.S.C. § 1252(b)(4); see also Xiu

7    Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

8    curiam).

9        We find no error in the agency’s reliance on the

10   discrepancies between Nilaj’s testimony and his asylum

11   application in finding him not credible.     For asylum

12   applications governed by the REAL ID Act, the agency may, in

13   light of the totality of the circumstances, base a

14   credibility finding on an asylum applicant’s “demeanor,

15   candor, or responsiveness,” the plausibility of his or her

16   account, and inconsistencies in his or her statements,

17   without regard to whether they go “to the heart of the

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

19   Lin, 534 F.3d at 167.     Here, the IJ reasonably determined

20   that the inconsistency between Nilaj’s testimony that his

21   first arrest occurred in April 2005, and his asylum

22   application, which stated that the arrest occurred in

23   November 2005, undermined Nilaj’s credibility, especially

                                     3
1    considering that Nilaj amended his application twice and

2    affirmed that the information in his application was true

3    and correct. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

4    534 F.3d at 167.     Additionally, the IJ reasonably found

5    Nilaj’s testimony regarding his actions immediately

6    following his alleged beating to be implausible and

7    inconsistent.     See Wensheng Yan v. Mukasey, 509 F.3d 63, 67

8    (2d Cir. 2007); Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

9    Cir. 2007).     The IJ also considered and reasonably rejected

10   the explanations Nilaj offered for these discrepancies.      See

11   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

12       Moreover, the IJ reasonably concluded that Nilaj’s

13   failure to provide adequate corroboration for his claim

14   further undermined his already questionable credibility.

15   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

16   As to the corroborating evidence Nilaj did submit, we defer

17   to the IJ’s determination that this evidence was of little

18   corroborative value because his medical record was suspect

19   and the letter from his former employer omitted any mention

20   of Nilaj’s problems with the Democratic Party .    See Xiao Ji

21   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

22   2006) (explaining that the weight afforded to the

23   applicant’s evidence in immigration proceedings lies largely

                                     4
1    within the discretion of the IJ).

2        Finally, because substantial evidence supports the

3    agency’s adverse credibility determination, and because the

4    only evidence of a threat to Nilaj’s life or freedom

5    depended upon his credibility, the adverse credibility

6    determination in this case necessarily precludes the success

7    of Nilaj’s withholding of removal and CAT claims.    See Paul

8    v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

9    v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot. Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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