     15-2359
     Gjonaj v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 000 574
                                                                               A099 000 575

                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   9th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   AGO GJONAJ, ZANA AGRAJA-GJONAJ,
14            Petitioners,
15
16                     v.                                            15-2359
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONERS:                    James A. Lombardi, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Holly M.
27                                       Smith, Senior Litigation Counsel;
28                                       Juria L. Jones, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, D.C.
32
1           UPON DUE CONSIDERATION of this petition for review of a Board

2    of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

3    ADJUDGED, AND DECREED that the petition for review is DENIED.

4           Petitioners Ago Gjonaj and Zana Agraja-Gjonaj, natives and

5    citizens of Albania, seek review of a June 30, 2015, decision

6    of the BIA, affirming a February 20, 2014, decision of an

7    Immigration Judge (“IJ”) denying Gjonaj’s application for

8    asylum, withholding of removal, and relief under the Convention

9    Against Torture (“CAT”).1 In re Ago Gjonaj, et al., No. A099

10   000 574/575 (B.I.A. June 30, 2015), aff’g No. A099 000 574/575

11   (Immigr. Ct. N.Y.C. Feb. 20, 2014).                          We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14          Under the circumstances of this case, we have reviewed the

15   IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t

16   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).2 The applicable

17   standards         of     review        are     well       established.              8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

19   (2d Cir. 2008).


     1
        The IJ also denied Zana Agraja-Gjonaj’s separate application for asylum and related relief. She
     did not appeal that decision to the BIA and does not challenge it in this Court. Agraja-Gjonaj,
     Gjonaj’s wife, was however included as a derivative beneficiary in Gjonaj’s application.
     2
       Gjonaj’s challenges to the IJ’s finding regarding his fraudulent passport are not before us
     because the BIA explicitly excluded that finding from its decision. See Xue Hong Yang, 426 F.3d
     at 522.
                                                     2
1           The REAL ID Act credibility standard provides that the

2    agency may, “[c]onsidering the totality of the circumstances,”

3    base a credibility finding on an asylum applicant’s “demeanor,

4    candor, or responsiveness,” the plausibility of his account,

5    and inconsistencies in his statements and evidence “without

6    regard to whether” those inconsistencies go “to the heart of

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

8    Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility

9    determination unless . . . it is plain that no reasonable

10   fact-finder could make such an adverse credibility ruling.” Xiu

11   Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must do more

12   than    offer   a   plausible    explanation        for   his     inconsistent

13   statements to secure relief; he must demonstrate that a

14   reasonable      fact-finder     would       be   compelled   to    credit   his

15   testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

16   (internal quotation marks and citations omitted). Substantial

17   evidence supports the agency’s determination that Gjonaj was

18   not credible.

19          The agency reasonably relied on inconsistencies regarding

20   Gjonaj’s medical record. See Xiu Xia Lin, 534 F.3d at 166-67.

21   Gjonaj testified that he was attacked twice -- in October 2000

22   outside a polling station and in September 2001 while detained


                                             3
1    -- and that he had submitted medical records for each attack.

2    Gjonaj, however, submitted only one medical certificate from

3    2007 documenting treatment in October 2001—a date which matched

4    neither of his alleged beatings. Gjonaj gave a series of

5    inconsistent explanations: the first attack actually occurred

6    in October 2001, not October 2000; the record pertained to the

7    first attack in October 2000; the record referred to the second

8    attack in September 2001. The agency was not required to credit

9    these explanations, which were not compelling and created

10   further inconsistencies that support the credibility

11   determination. See Majidi, 430 F.3d at 80; Xiu Xia Lin, 534 F.3d

12   at 166-67.

13       On appeal to the BIA, Gjonaj maintained that his testimony

14   was consistent.   In his brief to this Court, however, Gjonaj

15   argues that any inconsistency was the result of the confusing

16   phrasing of questions on cross-examination.      We decline to

17   consider this argument because it is unexhausted. See Lin Zhong

18   v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007).

19       The credibility determination was also reasonably based on

20   the absence of certain corroborating evidence. An applicant’s

21   failure to corroborate testimony may bear on credibility, either

22   because the absence of particular evidence is viewed as


                                    4
1    suspicious, or because the absence of corroboration in general

2    makes an applicant unable to rehabilitate testimony already

3    called into question. See Biao Yang v. Gonzales, 496 F.3d 268,

4    273 (2d Cir. 2007). Beyond the problems with Gjonaj’s medical

5    documentation, the IJ noted that Gjonaj failed to provide any

6    letters of support from his brother (who was allegedly detained

7    with him for three nights and beaten) or either of his parents

8    (who were both present when he and his brother were arrested,

9    and who have allegedly been visited by police searching for

10   Gjonaj).

11       Given   the    foregoing    inconsistencies   and   lack    of

12   corroboration, the totality of the circumstances supports the

13   agency’s adverse credibility determination. See Xiu Xia Lin,

14   534 F.3d at 167.     That finding is dispositive of asylum,

15   withholding of removal, and CAT relief because all three claims

16   are based on the same factual predicate.   See Paul v. Gonzales,

17   444 F.3d 148, 156-57 (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

19   DENIED.

20                                  FOR THE COURT:
21                                  Catherine O’Hagan Wolfe, Clerk




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