         13-4441
         Lajqi v. Holder
                                                                                       BIA
                                                                                    Burr, IJ
                                                                               A096 415 135
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       ENVER LAJQI, AKA PRIMOZ SKALAR,
14       AKA GREGOR GODLER,
15                Petitioner,
16
17                         v.                                   13-4441
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Peter D. Lobel, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Paul Fiorino, Senior
28                                     Litigation Counsel; Judith R.
29                                     O’Sullivan, Trial Attorney, Office
 1                          of Immigration Litigation, U.S.
 2                          Department of Justice, Washington,
 3                          D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Enver Lajqi, a native of the former Yugoslavia and

10   citizen of Kosovo, seeks review of an October 29, 2013

11   decision of the BIA, affirming the November 3, 2011 decision

12   of an Immigration Judge (“IJ”), denying his application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).    In re Enver Lajqi, No.

15   A096 415 135 (B.I.A. Oct. 29, 2013), aff’g A096 415 135

16   (Immig. Ct. N.Y. City Nov. 3, 2011).   We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       Under the circumstances of this case, we have reviewed

20   the decisions of both the IJ and the BIA.    Yun-Zui Guan v.

21   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

22   The applicable standards of review are well established.

23   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

24   F.3d 162, 165-66 (2d Cir. 2008) (per curiam).   The agency

25   may, “[c]onsidering the totality of the circumstances,” base


                                  2
 1   a credibility finding on an asylum applicant’s demeanor, and

 2   inconsistencies in his statements and other record evidence

 3   “without regard to whether” they go “to the heart of the

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

 5   Lin, 534 F.3d at 163-64.

 6       Because Lajqi does not raise a challenge to the

 7   pretermission of his asylum application as untimely, he has

 8   waived that issue and we decline to consider it.     See

 9   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7

10   (2d Cir. 2005).    Accordingly, we consider only the agency’s

11   adverse credibility determination as it applies to

12   withholding of removal and CAT relief.

13       Substantial evidence supports that determination, as it

14   is properly based on inconsistencies between Lajqi’s airport

15   interview, and his asylum application and hearing testimony,

16   which go directly to the basis of his claim for political

17   persecution.    Lajqi argues that his airport interview was

18   unreliable.    Where discrepancies arise from an applicant’s

19   statement in an airport interview, we examine the record of

20   the interview to ensure that it represents a “sufficiently

21   accurate record” of the applicant’s statements to merit

22   consideration in determining whether the applicant is

23   credible.     Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d

24   Cir. 2004).

                                     3
 1       Here, the agency reasonably found that the record of

 2   Lajqi’s airport interview was sufficiently reliable.

 3   Although not appearing to be a verbatim transcript, the

 4   interview bears the hallmarks of accuracy and reliability,

 5   including Lajqi’s signed affirmation of its truthfulness.

 6   The questions posed were designed to elicit the details of

 7   an asylum claim, e.g., “[d]o you have a fear or concern for

 8   your life, if you were removed from the United States?”

 9   There was no indication at the interview that Lajqi was

10   reluctant to answer questions.    Lastly, Lajqi was provided

11   an interpreter.   The record of the interview does not state

12   the language in which the interview took place, but reflects

13   that Lajqi confirmed he understood the immigration officer,

14   gave coherent answers, and otherwise did not indicate any

15   inability to understand.

16       Because the airport interview has sufficient indicia of

17   reliability, the agency reasonably based its adverse

18   credibility finding on Lajqi’s failure to mention his

19   alleged persecution.   The agency was not required to credit

20   Lajqi’s explanation for this omission, which was that he was

21   nervous.   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

22   Cir. 2005) (holding that the agency need not credit an


                                   4
 1   explanation for inconsistent testimony unless the

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

 3       The agency also reasonably disbelieved Lajqi’s

 4   testimony that he did not know, at the time of the

 5   interview, that he could apply for political asylum.       He was

 6   aware at that time that his sister had received asylum in

 7   the United States.   Because the IJ’s inference of

 8   implausibility was “tethered to the evidentiary record,” we

 9   defer to that finding.   Siewe v. Gonzales, 480 F.3d 160, 169

10   (2d Cir. 2007).   Ultimately, substantial evidence supports

11   the agency’s adverse credibility determination because

12   Lajqi’s statements in 2004 contradict his asylum

13   application, which was based on allegations of persecution

14   predating the 2004 interview.       Because Lajqi’s claim relied

15   on his credibility, this determination precludes both

16   withholding of removal and CAT relief as the claims are

17   based on the same factual predicate.       Paul v. Gonzales, 444

18   F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep't of

19   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

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

                                     5
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8
9




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