     16-3778
     Piroli v. Sessions
                                                                                   BIA
                                                                                Page, IJ
                                                                           A078 971 104
                               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 TO 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 5th day of July, two thousand           eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   NIKOLIN PIROLI,
15            Petitioner,
16
17                        v.                                     16-3778
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Charles Christophe, New York, NY.
25
26   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
27                                        Attorney General; Papu Sandhu,
28                                        Assistant Director; Victor M.
29                                        Lawrence, Senior Litigation
30                                        Counsel, Office of Immigration
31                                        Litigation, United States
32                                        Department of Justice, Washington,
33                                        DC.
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 DENIED.

5        Petitioner    Nikolin   Piroli,   a   native   and    citizen   of

6    Albania, seeks review of an October 11, 2016, decision of the

7    BIA affirming a May 14, 2015, decision of an Immigration Judge

8    (“IJ”) denying Piroli’s application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Nikolin Piroli, No. A 078 971 104 (B.I.A.

11   Oct. 11, 2016), aff’g No. A 078 971 104 (Immig. Ct. N.Y. City

12   May 14, 2015).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       We have reviewed both the BIA’s and IJ’s decisions.             See

15   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

16   The standards of review are well established.            See 8 U.S.C.

17   § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

18   Cir. 2009).

19       Piroli filed for asylum and related relief before May

20   11, 2005, so his application is not subject to the

21   credibility provisions of the REAL ID Act.         See REAL ID Act

22   of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303

23   (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter

                                     2
1    of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006).   In pre-REAL ID

2    Act cases, inconsistencies and other discrepancies in the

3    evidence are often sufficient to support an adverse

4    credibility determination, but they “need not necessarily

5    be fatal . . . if the disparities are relatively minor and

6    isolated and do not concern material facts,” and the

7    testimony is otherwise “generally consistent, rational, and

8    believable.”   Diallo v. U.S. Dep’t of Justice, 548 F.3d

9    232, 234 (2d Cir. 2008) (quoting Xiao Ji Chen v. U.S. Dep’t

10   of Justice, 471 F.3d 315, 335 (2d Cir. 2006)).   A

11   discrepancy generally must be substantial when measured

12   against the record as a whole, Secaida-Rosales v. INS, 331

13   F.3d 297, 308 (2d Cir. 2003), but “even where an IJ relies

14   on discrepancies or lacunae that, if taken separately,

15   concern matters collateral or ancillary to the claim, . . .

16   the cumulative effect may nevertheless be deemed

17   consequential by the fact-finder,” Tu Lin v. Gonzales, 446

18   F.3d 395, 402 (2d Cir. 2006) (internal citations and

19   quotation marks omitted); see also Liang Chen v. U.S. Att’y

20   Gen., 454 F.3d 103, 106-107 (2d Cir. 2006) (“[A]n IJ need

21   not consider the centrality vel non of each individual

22   discrepancy or omission” and can instead “rely upon the

23   cumulative impact of such inconsistencies, and may conduct

                                   3
1    an overall evaluation of testimony in light of its

2    rationality or internal consistency and the manner in which

3    it hangs together with other evidence.” (internal citation

4    and quotation marks omitted)).      Substantial evidence

5    supports the agency’s determination that Piroli was not

6    credible.

7        The IJ reasonably relied on omissions in Piroli’s

8    application and his parents’ letters in evaluating his

9    credibility.   See Cheng Tong Wang v. Gonzales, 449 F.3d

10   451, 453 (2d Cir. 2006) (“[O]missions that go to a heart of

11   an applicant’s claim can form the basis for an adverse

12   credibility determination.”).       A letter from Piroli’s

13   parents omits his purported July 2001 arrest and detention.

14   And Piroli’s original application omitted his allegation

15   that Albanian police routinely threatened him in 1997, and

16   both of his applications omitted his claim that the police

17   looked for him at his parents’ home while he sought refuge

18   with his uncle.   The agency was not compelled to accept the

19   explanation that the preparer or translator omitted these

20   details because Piroli testified that he had reviewed his

21   application and approved of its contents.       See Majidi v.

22   Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (holding that

23   an agency need not credit an applicant’s explanations for

                                     4
1    inconsistent testimony unless those explanations would

2    compel a reasonable fact-finder to do so).

3        Moreover, the IJ reasonably relied on an additional

4    inconsistency that arose during the remanded proceedings.

5    Piroli’s statement that he did not engage in political

6    activities in 1991 contradicted his updated asylum

7    application, in which he claimed that he participated in

8    meetings, demonstrations, and protests that year.    The

9    agency was permitted to rely on the “cumulative effect” of

10   that inconsistency and the omissions in assessing Piroli’s

11   credibility.   Tu Lin, 446 F.3d at 402; see also Liang Chen,

12   454 F.3d at 106-07.

13       Finally, the agency reasonably relied on the lack of

14   objective, reliable documentary evidence to corroborate

15   Piroli’s Democratic Party membership and his family’s

16   hardships.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

17   (2d Cir. 2007) (“An applicant’s failure to corroborate his

18   or her testimony may bear on credibility, because the

19   absence of corroboration in general makes an applicant

20   unable to rehabilitate testimony that has already been

21   called into question.”).   The IJ did not err in giving

22   diminished weight to the documents from Albania, which

23   included affidavits from his parents, three brothers, and a

                                   5
1    pastor.   See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.

2    2013) (“We defer to the agency’s determination of the

3    weight afforded to an alien’s documentary evidence.”).     And

4    the IJ reasonably accorded limited weight to the portions

5    of the statement from Dr. Bernd J. Fischer that discussed

6    Piroli’s personal circumstances, as those sections were

7    based only on information Piroli provided to Fischer.      See

8    id.

9          Substantial evidence supports the agency’s adverse

10   credibility determination given the inconsistency and

11   omissions, as well as the lack of reliable documentary

12   evidence.   See Diallo, 548 F.3d at 234.   The adverse

13   credibility determination is dispositive of asylum,

14   withholding of removal, and CAT relief because all three

15   claims rely on Piroli’s credibility.   See Paul v. Gonzales,

16   444 F.3d 148, 156-57 (2d Cir. 2006).

17         Piroli’s remaining arguments are meritless.   Because

18   the IJ reasonably determined that Piroli’s claim of past

19   persecution on account of his Democratic Party affiliation

20   was not credible, any arguments regarding the current

21   authority of the opposition party or an imputed political

22   opinion are irrelevant.   And contrary to Piroli’s position,

23   the IJ did address Piroli’s alleged detention but suggested

                                   6
1    that the allegations regarding it were questionable because

2    Piroli’s parents did not mention the detention in their

3    letter.

4        Finally, Piroli attempts to state a due process claim,

5    contending that the IJ analyzed his case too hastily and

6    had to correct himself on the record at least once.   To

7    state a due process claim, Piroli must show that he (1) was

8    denied a “full and fair opportunity” to present his claims

9    or was otherwise deprived of “fundamental fairness,” Burger

10   v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal

11   quotation marks omitted); and (2) experienced “cognizable

12   prejudice,” Garcia–Villeda v. Mukasey, 531 F.3d 141, 149

13   (2d Cir. 2008) (internal quotation marks omitted).    Piroli

14   does neither: he does not demonstrate that an initial

15   misperception regarding social security payments affected

16   the IJ’s decision making, given that the IJ corrected

17   himself, nor does Piroli show that the outcome of his case

18   would have been different had the IJ adjudicated his case

19   more slowly.   Accordingly, the claims Piroli raises as

20   “reversible error” have no merit.

21       For the foregoing reasons, the petition for review is

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

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

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

2   is DISMISSED as moot.   Any pending request for oral argument

3   in this petition is DENIED in accordance with Federal Rule of

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

5   34.1(b).

6                               FOR THE COURT:
7                               Catherine O’Hagan Wolfe,
8                               Clerk of Court




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