         10-2895-ag
         Krivca v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A099 559 559
                                                                               A099 559 558
                             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 14th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       ______________________________________
12
13       LJAURA KRIVCA, BESNIK SALAI,
14                Petitioners,
15
16                          v.                                  10-2895-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONERS:              Justin Conlon, North Haven, CT.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Anthony C. Payne, Office
28                                     of Immigration Litigation; U.S.
29                                     Department of Justice, Washington,
30                                     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 DENIED.

 5       Ljaura Krivca and her husband Besnik Salai, natives of

 6   the former Yugoslavia and citizens of Macedonia, seek review

 7   of a June 23, 2010, decision of the BIA affirming the May

 8   29, 2008, decision of Immigration Judge (“IJ”) Michael W.

 9   Straus, which denied their applications for asylum,

10   withholding of removal, and relief under the Convention

11   Against Torture (“CAT”).     In re Ljaura Krivca, Besnik Salai,

12   Nos. A099 559 559/558 (BIA June 23, 2010), aff’g Nos. A099

13   559 559, A099 559/558 (Immig. Ct. Hartford, CT, May 29,

14   2008).   We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Under the circumstances of this case, we have reviewed

17   both the IJ’s and the BIA’s opinions “for the sake of

18   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19   2008).   The applicable standards of review are well

20   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Corovic

21   v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,

22   529 F.3d 99, 110 (2d Cir. 2008).


                                     2
 1       Petitioners challenge the agency’s adverse credibility

 2   determination on the grounds that the agency ignored

 3   corroborating evidence, improperly discounted two summonses,

 4   and erred in failing to require that Salai testify at the

 5   hearing.

 6       Petitioners first argue that the BIA erred in failing

 7   to consider all of the materials in evidence.     We reject

 8   this argument.   The BIA is not required to address

 9   explicitly each piece of evidence.     See Jian Hui Shao v.

10   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (rejecting the

11   notion that the agency must “expressly parse or refute on

12   the record each individual argument or piece of evidence

13   offered by the petitioner”).   Moreover, the record does not

14   compel the conclusion that the BIA failed to consider all of

15   Petitioners’ submissions.   See Xiao Ji Chen v. U.S. Dep’t of

16   Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming

17   that the agency “has taken into account all of the evidence

18   before [it], unless the record compellingly suggests

19   otherwise”).

20       Nor did the BIA err in finding that two summonses

21   purportedly issued to Krivca by the Macedonian authorities

22   were inauthentic and unreliable.     Although an IJ may not


                                    3
 1   reject a document solely because it was not authenticated

 2   pursuant to 8 C.F.R. § 287.6 (subsequently recodified at §

 3   1287.6), Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,

 4   404-05 (2d Cir. 2005), we afford IJs “considerable

 5   flexibility in determining the authenticity of . . .

 6   documents from the totality of the evidence and in using

 7   documents found to be authentic in making an overall

 8   assessment of the credibility of a petitioner’s testimony

 9   and, ultimately, of her persecution claim.”     Shunfu Li v.

10   Mukasey, 529 F.3d 141, 149 (2d Cir. 2008).    Here, the agency

11   reasonably determined that the summonses were not reliable

12   because they were not authenticated, the issuance dates were

13   unspecific and altered, and the second summons, which

14   purportedly required Krivca to appear for questioning about

15   her published letter to a newspaper, was issued before the

16   letter was published.   Id.

17       Petitioners’ argument that the BIA erred in failing to

18   require Salai’s testimony is also unavailing.    First,

19   Salai’s assertion that the BIA failed to consider his claims

20   for relief is essentially a due process claim, as it is

21   based on his allegation that the IJ failed to follow the

22   required procedures for adjudication of an asylum claim and


                                   4
 1   failed to give him the opportunity to be heard.    “To

 2   establish a violation of due process, an alien must show

 3   that [he] was denied a full and fair opportunity to present

 4   [his] claims or that the IJ or BIA otherwise deprived [him]

 5   of fundamental fairness.”   Burger v. Gonzales, 498 F.3d 131,

 6   134 (2d Cir. 2007) (internal quotations marks and citations

 7   omitted).   Here, the record reflects that, after Krivca and

 8   an expert had testified, the IJ asked Petitioners’ counsel

 9   whether he wished to present any additional evidence.     In

10   discussing the possibility of Salai testifying, counsel

11   proffered that Salai’s testimony would contain “nothing

12   new,” and would be duplicative of Krivca’s testimony.

13   Second, the IJ gave counsel the opportunity to consult with

14   Petitioners off the record regarding the decision not to

15   have Salai testify, and on returning, counsel did not

16   indicate that Petitioners disagreed with this decision.

17   Because Salai was thus afforded “a full and fair

18   opportunity” to present his claims, his argument that the

19   case should be remanded to allow him an opportunity to

20   testify is without merit.   Id.; see also Hoodho v. Holder,

21   558 F.3d 184, 192 (2d Cir. 2009) (“[A] party who voluntarily

22   chose an attorney as his representative in an action cannot


                                   5
 1   avoid the consequences of the acts or omissions of this

 2   freely selected agent.” (internal alterations and quotation

 3   marks omitted)).

 4       Petitioners also argue that Matter of Fefe, 20 I. & N.

 5   Dec. 116 (BIA 1989), supports their contention that the IJ

 6   erred in failing to require Salai to take the stand, as his

 7   testimony was required under 8 C.F.R. § 1240.11(c)(3)(iii),

 8   which provides that “[d]uring the removal hearing, the

 9   [asylum applicant] shall be examined under oath on his or

10   her application . . ..”   In Matter of Fefe, there was no

11   witness testimony whatsoever, nor did the applicant submit

12   any evidence other than his asylum application.    See Matter

13   of Fefe, 20 I. & N. Dec. at 117.    In that context, the

14   applicant’s failure to testify left the IJ with insufficient

15   information to render a decision.   Here, however, Krivca,

16   the primary applicant and a witness to all of the events

17   which had befallen Salai, testified, and Salai proffered

18   that his testimony would be the same.    In addition, the

19   requirement set forth in Matter of Fefe – that an applicant

20   be questioned as to whether the information in his written

21   statement is “complete and correct,” 20 I. & N. Dec. at 118,

22   – is inapplicable here, as Salai did not submit any written


                                   6
 1   statement of his claim, and his alleged independent

 2   application contained no information as to the basis of his

 3   claim, but simply referred to Krivca’s statement.

 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




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