     08-3347-ag
     Xholi v. Holder
                                                                            BIA
                                                                      Laforest, IJ
                                                                    A099 077 393
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

 1   Rulings by summary order do not have precedential effect. Citation to
 2   a summary order filed on or after January 1, 2007, is permitted and is
 3   governed by Federal Rule of Appellate Procedure 32.1 and this court’s
 4   Local Rule 32.1.1. When citing a summary order in a document filed
 5   with this court, a party must cite either the Federal Appendix or an
 6   electronic database (with the notation “summary order”). A party
 7   citing a summary order must serve a copy of it on any party not
 8   represented by counsel.
 9
10        At a stated term of the United States Court of Appeals
11   for the Second Circuit, held at the Daniel Patrick Moynihan
12   United States Courthouse, 500 Pearl Street, in the City of
13   New York, on the 8 th day of February, two thousand ten.
14
15   PRESENT:
16            DENNIS JACOBS,
17                  Chief Judge,
18            PIERRE N. LEVAL,
19            PETER W. HALL,
20                  Circuit Judges.
21   _______________________________________
22
23   SHEHAT XHOLI,
24            Petitioner,
25
26                     v.                             08-3347-ag
27                                                    NAC
28   ERIC H. HOLDER, Jr., U.S. ATTORNEY
29   GENERAL, 1
30              Respondent.
31   _______________________________________


                   1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         Andrew P. Johnson, New York, New
 2                           York.
 3
 4   FOR RESPONDENT:         Gregory G. Katsas, Assistant
 5                           Attorney General, Ernesto H. Molina,
 6                           Jr., Assistant Director, Dana M.
 7                           Camilleri, Trial Attorney, Office of
 8                           Immigration Litigation, Civil
 9                           Division, United States Department
10                           of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Shehat Xholi, a native and citizen of

6    Albania, seeks review of a July 19, 2008 order of the BIA

7    affirming the October 27, 2006 decision of Immigration Judge

8    (“IJ”) Brigitte Laforest, denying his application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Shehat Xholi, No.

11   A099 077 393 (B.I.A. July 19, 2008), aff’g No. A099 077 393

12   (Immig. Ct. N.Y. City Oct. 27, 2006).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

15        We review the agency’s factual findings, including

16   adverse credibility determinations, under the substantial

17   evidence standard.   8 U.S.C. § 1252(b)(4)(B); see also

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1    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).    We

2    review de novo questions of law and the application of law

3    to undisputed fact.   See Salimatou Bah v. Mukasey, 529 F.3d

4    99, 110 (2d Cir. 2008).

5        Because Xholi filed his asylum application after May

6    11, 2005, the amendments made to the Immigration and

7    Nationality Act by the REAL ID Act of 2005 apply to his

8    asylum application.   See Pub. L. No. 109-13, § 101(h)(2),

9    119 Stat. 231, 305 (2005).   For asylum applications governed

10   by the REAL ID Act, the agency may, considering the totality

11   of the circumstances, base a credibility finding on an

12   asylum applicant’s demeanor, the plausibility of his or her

13   account, and inconsistencies in his or her statements,

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

15   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); see

16   Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).

17       As an initial matter, while Xholi’s brief to the BIA

18   mentioned the IJ's credibility determination, it presented

19   no specific challenge to the credibility-related findings,

20   asserting only that the IJ erroneously focused on “some

21   confusion or mistakes” rather than his claims of

22   persecution.   See Lin Zhong v. U.S. Dep’t of Justice, 480


                                   3
1    F.3d 104, 125 (2d Cir. 2007) (describing the issue

2    exhaustion requirement as “mandatory”).   However, because

3    the BIA addressed some of the credibility issues not raised

4    by Xholi, those specific issues are considered exhausted,

5    and we may review them.   See Xian Tuan Ye v. DHS, 446 F.3d

6    289, 296-97 (2d Cir. 2006); Waldron v. INS, 17 F.3d 511, 515

7    n.7 (2d Cir. 1994).

8        Substantial evidence supports the agency’s adverse

9    credibility determination.   The IJ noted several

10   discrepancies in Xholi’s testimony: (1) Xholi testified at

11   his hearing that he was detained for 24 hours, but stated

12   during his asylum interview that he was detained for a

13   period of six hours, and (2) Xholi testified that Socialists

14   shot at him on October 20, 2004, but stated during an asylum

15   interview that the event took place in December 2004.      Xholi

16   argues that the IJ erred in failing to consider his

17   explanation for the inconsistency regarding the length of

18   his detention – that he was “out of his mind.”      However, the

19   IJ considered Xholi’s explanation, and was not compelled to

20   accept it.   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

21   2005).   Even if these inconsistencies were deemed minor, the

22   IJ was entitled to rely on their cumulative effect.      Xiu Xia


                                   4
1    Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see also

2    Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).

3    Accordingly, under the REAL ID Act, the IJ properly relied

4    on these inconsistencies in denying Xholi’s application for

5    relief.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin,

6    534 F.3d at 167.

7        Furthermore, contrary to Xholi’s argument, the IJ was

8    not required to identify missing corroborating evidence and

9    to make a finding as to its availability before relying on a

10   lack of corroboration to support her credibility

11   determinations.    See Biao Yang v. Gonzales, 496 F.3d 268,

12   273 (2d Cir. 2007) (Explaining that an applicant’s failure

13   to corroborate his or her testimony may bear on credibility,

14   either because the absence of particular corroborating

15   evidence is viewed as suspicious, or because the absence of

16   corroboration in general makes an applicant unable to

17   rehabilitate testimony that has already been called into

18   question).

19       These proper findings notwithstanding, the agency erred

20   in finding that Xholi lacked corroborating evidence from his

21   brother, as the record reveals that Xholi submitted a

22   declaration from his brother stating that he was attacked by


                                    5
1    three people during a 2006 visit to Albania.   However, even

2    assuming this finding was erroneous, remand would be futile

3    in this case because the IJ’s broader credibility

4    determination is amply supported by the record and we can

5    confidently predict based on the IJ’s non-erroneous

6    findings, that the agency would reach the same credibility

7    determination absent this error.   See Xiao Ji Chen v. U.S.

8    Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006).    The IJ

9    did not rely disproportionately on the lack of corroborating

10   evidence concerning the alleged attack against Xholi’s

11   brother; instead, the IJ appeared to reach the adverse

12   credibility determination based on the cumulative effect of

13   the other findings.   See Xiu Xia Lin, 534 F.3d at 165-66.

14   Accordingly, the agency’s denial of Xholi’s asylum

15   application was proper.

16       Because the IJ’s adverse credibility finding was

17   supported by substantial evidence, we need not reach her

18   alternative findings that, even assuming credibility, Xholi

19   failed to sustain his burden of proof to establish past

20   persecution or a well-founded fear of future persecution.

21       Lastly, because Xholi’s claims for withholding of

22   removal and CAT relief share the same factual predicate as


                                   6
1    his asylum claim, those claims necessarily fail.    See Paul

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

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

4        For the foregoing reasons, the petition for review is

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

6    removal that the Court previously granted in this petition

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

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

9    oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15
16




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