     17-3529
     Hysaj v. Barr
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A208 752 131
                          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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 29th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            SUSAN L. CARNEY,
 9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   EMANUEL HYSAJ,
14            Petitioner,
15
16                   v.                                          17-3529
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Oleh R. Tustaniwsky, Esq.,
24                                    Brooklyn, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Acting Assistant
27                                    Attorney General; Anthony P.
28                                    Nicastro, Assistant Director;
29                                    Patricia E. Bruckner, Trial
30                                    Attorney, 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    Emanuel     Hysaj,       a   native       and    citizen    of

6    Albania, seeks review of an October 12, 2017 decision of the

7    BIA affirming a December 5, 2016 decision of an Immigration

8    Judge   (“IJ”)      denying     Hysaj’s       application           for    asylum,

9    withholding    of   removal,     and       relief     under    the    Convention

10   Against Torture (“CAT”).         In re Emanuel Hysaj, No. A 208 752

11   131 (B.I.A. Oct. 12, 2017), aff’g No. A 208 752 131 (Immig.

12   Ct.   N.Y.   City   Dec.   5,   2016).           We   assume        the   parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.                       See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                      We review the

18   agency’s factual findings for substantial evidence and its

19   legal conclusions de novo.             See Niang v. Holder, 762 F.3d

20   251, 253 (2d Cir. 2014); see also Hong Fei Gao v. Sessions,

21   891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility

22   determination under a substantial evidence standard).


                                            2
1    Frivolous Finding

2          “A person who makes an application for asylum determined

3    to be ‘frivolous,’ or deliberately and materially false, is

4    subject to a grave penalty: permanent ineligibility for most

5    forms of relief under the immigration laws.”              Mei Juan Zheng

6    v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see also 8

7    U.S.C. § 1158(d)(6) (“If the Attorney General determines that

8    an alien has knowingly made a frivolous application for asylum

9    and the alien has received the notice [of the consequences of

10   filing   a   frivolous    application],     the       alien    shall   be

11   permanently ineligible for any benefits under this chapter,

12   effective as of the date of a final determination on such

13   application.”).      Before being subject to this permanent bar,

14   Hysaj was entitled to procedural safeguards: “(1) notice . .

15   . of the consequences of filing a frivolous application; (2) a

16   specific finding . . . that [he] knowingly filed a frivolous

17   application; (3) sufficient evidence in the record to support

18   the finding that a material element of the asylum application

19   was   deliberately    fabricated;    and   (4)    .   .    .   sufficient

20   opportunity to account for any discrepancies or implausible

21   aspects of the claim.”      In re Y-L-, 24 I. & N. Dec. 151, 155




                                      3
1    (BIA 2007).      Hysaj disputes only that the third requirement

2    was met.

3          The record supports the agency’s conclusion that Hysaj

4    deliberately     fabricated     a   material    part    of   his     claim.

5    Hysaj’s    testimony     was   internally     inconsistent     regarding

6    whether he was frightened by June 2015 threatening phone call

7    or calls and whether as a result he took any steps to protect

8    himself or left the country, and he omitted from his written

9    statement and direct testimony that he left Albania for two

10   weeks in the summer of 2015 to try to come to the United

11   States.    Although Hysaj argues that he never testified that

12   he remained in Albania during the relevant period, the agency

13   could reasonably expect that, when he was asked about his

14   activities in July 2015, Hysaj would disclose that he left

15   Albania for two weeks.         See Hong Fei Gao, 891 F.3d at 78–79

16   (“[I]n    assessing     the probative   value    of    the   omission    of

17   certain facts, an IJ should consider whether those facts are

18   ones that a credible petitioner would reasonably have been

19   expected to disclose under the relevant circumstances.”); see

20   also In re Y-L-, 24 I. & N. Dec. at 158 (“[P]roof that conduct

21   was    knowing     or    deliberate     may     be     demonstrated     by

22   circumstantial      evidence.”).        Furthermore,         Hysaj    gave


                                         4
1    “dramatically different” accounts of what happened in June

2    and July 2015.          Cf. Majidi v. Gonzales, 430 F.3d 77, 80 (2d

3    Cir. 2005) (determining that a petitioner’s “dramatically

4    different”    accounts        of    an    incident      provides      substantial

5    evidence   for     adverse     credibility         determination).             Hysaj

6    changed    his    testimony        from       reporting   that     he    was    not

7    frightened by the June 2015 threat or threats and took no

8    steps to protect himself to stating that he was so frightened

9    by the call or calls that he left Albania and tried to come

10   to the United States.          His admission that he fled Albania in

11   June 2015 also contradicts his written statement—that he and

12   his family concluded that he needed to leave for the United

13   States after he was assaulted in November 2015.                                These

14   conflicting       versions         of    events     support      the     agency’s

15   conclusion       that    he   fabricated          his   claim    of     political

16   persecution.        Cf. Majidi, 430 F.3d at 80.                    Given these

17   contradictions, which implicated the harm he suffered and

18   feared and the extent of his political activities, the agency

19   did not err in finding that he fabricated a material aspect

20   of his asylum claim.          See In re Y-L-, 24 I. & N. Dec. at 155.

21   Adverse Credibility Determination




                                               5
1        The governing credibility standard under the REAL ID Act

2    is as follows:

 3       Considering the totality of the circumstances, and
 4       all relevant factors, a trier of fact may base a
 5       credibility determination on . . . the consistency
 6       between the applicant’s or witness’s written and
 7       oral statements . . . , the internal consistency of
 8       each such statement, the consistency of such
 9       statements with other evidence of record . . . , and
10       any inaccuracies or falsehoods in such statements,
11       . . . or any other relevant factor.
12
13   8 U.S.C. § 1158(b)(1)(B)(iii).    “We defer . . . to an IJ’s

14   credibility determination unless . . . it is plain that no

15   reasonable fact-finder could make such an adverse credibility

16   ruling.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

17   2008); accord Hong Fei Gao, 891 F.3d at 76.       Substantial

18   evidence   supports    the   agency’s   adverse   credibility

19   determination.

20       First, as discussed above, there were inconsistencies in

21   Hysaj’s written and oral statements regarding whether he was

22   frightened by June 2015 threatening phone call or calls and

23   whether he took steps to protect himself or left the country

24   as a result.   The IJ could reasonably expect that Hysaj would

25   disclose a previous attempt to escape persecution in his

26   asylum application and that he would mention that attempt




                                   6
1    when asked about his activities during the period he was

2    outside Albania.      See Hong Fei Gao, 891 F.3d at 78–79.

3          Second,     additional     findings     bolster   the     adverse

4    credibility determination.        Hysaj concedes that his testimony

5    was inconsistent regarding whether he reported the June 2015

6    threat or threats to the police and whether Democratic Party

7    leaders told him to contact the police.            The agency was not

8    required     to   credit   his   correction   to   conform    with   his

9    application.      See Majidi, 430 F.3d at 80 (“A petitioner must

10   do    more   than    offer   a   plausible    explanation     for    his

11   inconsistent statements to secure relief; he must demonstrate

12   that a reasonable fact-finder would be compelled to credit

13   his    testimony.”     (internal       quotation   marks     omitted)).

14   Furthermore, whether Hysaj contacted the police regarding the

15   threats is significant because it implicates whether “the

16   government is unable or unwilling” to control his alleged

17   persecutors.      See Pan v. Holder, 777 F.3d 540, 543 (2d Cir.

18   2015).     The agency also reasonably relied on Hysaj’s omission

19   from his direct testimony that he was threatened with a knife

20   because he was asked twice about the problems he experienced

21   and only generally stated in response that he “had many

22   threats.”     See Hong Fei Gao, 891 F.3d at 78–79.


                                        7
1         Given these inconsistencies and omissions, substantial

2    evidence     supports       the     agency’s        adverse    credibility

3    determination.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

4    Lin, 534 F.3d at 167.       Because Hysaj’s claims were all based

5    on   the   same   factual    predicate,       the    adverse   credibility

6    determination     is   dispositive       of   asylum,    withholding   of

7    removal, and CAT relief.          See Paul v. Gonzales, 444 F.3d 148,

8    156-57 (2d Cir. 2006).

9         For the foregoing reasons, the petition for review is

10   DENIED.    All pending motions and applications are DENIED and

11   stays VACATED.

12                                       FOR THE COURT:
13                                       Catherine O’Hagan Wolfe,
14                                       Clerk of Court




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