         13-2312
         Cupi v. Holder
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 748 096
                           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 11th day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       DORJAN CUPI,
14                Petitioner,
15
16                        v.                                    13-2312
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gregory Marotta, Vernon, New Jersey.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Mary Jane Candaux,
27                                     Assistant Director; Aimee J.
28                                     Carmichael, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, 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       Dorjan Cupi, a native and citizen of Albania, seeks

 6   review of a May 15, 2013, decision of the BIA affirming an

 7   Immigration Judge’s (“IJ”) February 28, 2012, decision,

 8   denying his application for asylum, withholding of removal,

 9   and relief under the Convention Against Torture (“CAT”).      In

10   re Dorjan Cupi, No. A200 748 096 (B.I.A. May 15, 2013),

11   aff’g No. A200 748 096 (Immig. Ct. N.Y. City Feb. 28, 2012).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the decision of the IJ as supplemented by the BIA.     See Yan

16   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

17   applicable standards of review are well established.     See 8

18   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

19   F.3d 510, 513 (2d Cir. 2009).

20       For applications such as Cupi’s, governed by the REAL

21   ID Act of 2005, the agency may, “considering the totality of

22   the circumstances,” base a credibility finding on the

23   applicant’s “demeanor, candor, or responsiveness,” the

                                     2
 1   plausibility of his account, and inconsistencies in his

 2   statements, without regard to whether they go “to the heart

 3   of the applicant’s claim.”   See 8 U.S.C.

 4   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 5   167 (2d Cir. 2008) (per curiam).   We “defer to an IJ’s

 6   credibility determination unless, from the totality of the

 7   circumstances, it is plain that no reasonable fact-finder

 8   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

 9       Here, the IJ reasonably based the adverse credibility

10   determination on Cupi’s inconsistent testimony,

11   inconsistencies between his testimony and documentary

12   evidence, and the implausibility of his evidence.      As the

13   agency found, Cupi testified inconsistently regarding the

14   dates he and his father were arrested and whether he knew

15   that his friend was arrested with him.      Contrary to a

16   membership card and a letter from the Socialist Party that

17   dated his party membership to 2006, Cupi testified that he

18   first joined in 2003.   He also testified that his mother and

19   family doctor treated the injuries he received during his

20   arrests, contradicting his affidavit statement that his

21   girlfriend treated him in his dormitory.

22



                                   3
 1       Although Cupi offered explanations for these

 2   inconsistencies, the IJ was not “‘compelled to credit’”

 3   them.   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

 4   (internal citation omitted).   Cupi asserted that his

 5   membership card reflected the date it was issued, 2006, when

 6   the Socialist Party began issuing cards.   But the card

 7   indicates that 2006 was the “date of [his] acceptance” and

 8   Cupi’s sole witness testified that cards were issued as

 9   early as 1991.   When confronted with the inconsistency

10   regarding the treatment of his injuries, Cupi testified that

11   his girlfriend treated him before he went to his parents’

12   home or the hospital, but he did not explain why he did not

13   go directly to the hospital given the severity of his

14   injuries.   The IJ reasonably relied on these unexplained

15   inconsistencies to support the adverse credibility

16   determination.   See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

17   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.

18       Moreover, the IJ reasonably found implausible both:

19   (1) Cupi’s affidavit, because it reported strikingly similar

20   events during and after his arrests using nearly identical

21   language; and (2) the omission of any mention in a letter

22   from the Socialist Party that Cupi was a member from 2003 to


                                    4
 1   2006, despite the fact that he testified that he was an

 2   active local leader during that time.   See Wensheng Yan v.

 3   Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (noting that the

 4   reasons for an implausibility finding must be evident in the

 5   record).

 6       Given these inconsistencies and implausibilities, the

 7   totality of the circumstances supports the agency’s adverse

 8   credibility determination.   See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

10   Although Cupi submitted corroborating witness testimony,

11   letters, a membership card, and a hospital record, the IJ

12   reasonably found that evidence insufficient to establish his

13   eligibility for relief absent credible testimony because:

14   (1) his witness lacked personal knowledge of Cupi’s arrests;

15   (2) the card and hospital record were contradicted by Cupi’s

16   testimony; and (3) the letters’ authors were not available

17   for cross-examination.   See Xiao Ji Chen v. U.S. Dep’t of

18   Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight

19   accorded to documentary evidence lies largely within

20   agency’s discretion); see also Matter of H-L-H- & Z-Y-Z-, 25

21   I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished

22   evidentiary weight to letters because the authors were not

23   subject to cross-examination), rev’d on other grounds by Hui
                                   5
 1   Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).    As the

 2   only evidence of a threat to Cupi’s life or freedom, or

 3   likelihood of torture, depended upon his credibility, the

 4   adverse credibility determination in this case necessarily

 5   precludes success on his claims for asylum, withholding of

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

 7   148, 156 (2d Cir. 2006).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19




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