18-3100 Bilali v. Garland BIA Conroy, IJ A206 228 237 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 21st day of July, two thousand twenty-one. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GUIDO CALABRESI, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 _____________________________________ 12 13 HALIM BILALI, 14 Petitioner, 15 16 v. 18-3100 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Marotta, Esq., Vernon, 24 NJ. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Jessica A. Dawgert, 28 Senior Litigation Counsel; Jacob 29 A. Bashyrov, Trial Attorney, 30 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Halim Bilali, a native and citizen of Albania,
8 seeks review of a September 25, 2018, decision of the BIA
9 affirming a October 25, 2017, decision of an Immigration Judge
10 (“IJ”) denying Bilali’s application for asylum, withholding
11 of removal, and relief under the Convention Against Torture
12 (“CAT”). In re Halim Bilali, No. A 206 228 237 (B.I.A. Sept.
13 25, 2018), aff’g No. A 206 228 237 (Immig. Ct. N.Y. City Oct.
14 25, 2017). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed both the IJ’s and BIA’s decisions “for
17 the sake of completeness.” Wangchuck v. Dep’t of Homeland
18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
19 standards of review are well established. See 8 U.S.C.
20 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76–
21 77 (2d Cir. 2018). “Considering the totality of the
22 circumstances, and all relevant factors, a trier of fact may
2 1 base a credibility determination on . . . the consistency
2 between the applicant’s . . . written and oral statements .
3 . . , the internal consistency of each such statement, the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 “We defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
12 2008); accord Hong Fei Gao, 891 F.3d at 76. The agency’s
13 adverse credibility determination is supported by substantial
14 evidence given the fundamental discrepancies in Bilali’s
15 accounts of the physical harm that he and his family
16 experienced in Albania. See 8 U.S.C. § 1158(b)(1)(B)(iii).
17 The agency reasonably relied on Bilali’s omission from
18 his asylum application of an attack in 2013, which Bilali
19 testified was the most serious harm he suffered in Albania.
20 Despite Bilali’s testimony that the incident was so severe
21 that it caused him to flee Albania, he did not include any
22 reference to it in his application. Because his asylum 3 1 application described more distant and less severe instances
2 of harm in detail, the agency reasonably relied on this
3 omission in support of its credibility finding. See Hong Fei
4 Gao, 891 F.3d at 78 (explaining that “the probative value of
5 a witness’s prior silence on particular facts depends on
6 whether those facts are ones the witness would reasonably
7 have been expected to disclose”).
8 Bilali’s credibility was further undermined by his
9 inconsistent accounts of other physical harm in his credible
10 fear interview with an asylum officer, application, and
11 testimony. As an initial matter, the agency did not err in
12 relying on Bilali’s statement during his credible fear
13 interview that he had never been physically harmed in Albania,
14 because the record of this interview bore sufficient indicia
15 of reliability so as to warrant evidentiary weight. See Ming
16 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). The record
17 is typewritten, setting forth clear questions and answers,
18 and reflects questions designed to elicit details of Bilali’s
19 asylum claim. Moreover, an interpreter was present, and
20 there is no indication that Bilali had difficulty
21 communicating. The agency was not compelled to accept
22 Bilali’s explanation that he misunderstood the question and 4 1 was under stress at the time, because Bilali was otherwise
2 responsive to the asylum officer’s questions throughout the
3 interview. See Hong Fei Gao, 891 F.3d at 76; Majidi v.
4 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
5 do more than offer a plausible explanation for his
6 inconsistent statements to secure relief; he must demonstrate
7 that a reasonable fact-finder would be compelled to credit
8 his testimony.” (internal citation and quotation marks
9 omitted)).
10 Bilali’s testimony that no one in his family suffered
11 any harm because of his political activities also conflicted
12 with his application and provided further support for the
13 adverse credibility finding. In his application, Bilali
14 claimed that his brother was shot in an attempt to reach
15 Bilali, and that opposition supporters attempted to rape his
16 sister and his first cousin. When probed on these alleged
17 incidents, however, Bilali testified that he was unsure if
18 anything happened to his family members at all.
19 The agency also reasonably determined that Bilali’s
20 documentary evidence did not rehabilitate his credibility.
21 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
22 (“An applicant’s failure to corroborate his or her testimony 5 1 may bear on credibility, because the absence of corroboration
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18-3100 Bilali v. Garland BIA Conroy, IJ A206 228 237 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 21st day of July, two thousand twenty-one. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GUIDO CALABRESI, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 _____________________________________ 12 13 HALIM BILALI, 14 Petitioner, 15 16 v. 18-3100 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Marotta, Esq., Vernon, 24 NJ. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Jessica A. Dawgert, 28 Senior Litigation Counsel; Jacob 29 A. Bashyrov, Trial Attorney, 30 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Halim Bilali, a native and citizen of Albania,
8 seeks review of a September 25, 2018, decision of the BIA
9 affirming a October 25, 2017, decision of an Immigration Judge
10 (“IJ”) denying Bilali’s application for asylum, withholding
11 of removal, and relief under the Convention Against Torture
12 (“CAT”). In re Halim Bilali, No. A 206 228 237 (B.I.A. Sept.
13 25, 2018), aff’g No. A 206 228 237 (Immig. Ct. N.Y. City Oct.
14 25, 2017). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed both the IJ’s and BIA’s decisions “for
17 the sake of completeness.” Wangchuck v. Dep’t of Homeland
18 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
19 standards of review are well established. See 8 U.S.C.
20 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76–
21 77 (2d Cir. 2018). “Considering the totality of the
22 circumstances, and all relevant factors, a trier of fact may
2 1 base a credibility determination on . . . the consistency
2 between the applicant’s . . . written and oral statements .
3 . . , the internal consistency of each such statement, the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 “We defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
12 2008); accord Hong Fei Gao, 891 F.3d at 76. The agency’s
13 adverse credibility determination is supported by substantial
14 evidence given the fundamental discrepancies in Bilali’s
15 accounts of the physical harm that he and his family
16 experienced in Albania. See 8 U.S.C. § 1158(b)(1)(B)(iii).
17 The agency reasonably relied on Bilali’s omission from
18 his asylum application of an attack in 2013, which Bilali
19 testified was the most serious harm he suffered in Albania.
20 Despite Bilali’s testimony that the incident was so severe
21 that it caused him to flee Albania, he did not include any
22 reference to it in his application. Because his asylum 3 1 application described more distant and less severe instances
2 of harm in detail, the agency reasonably relied on this
3 omission in support of its credibility finding. See Hong Fei
4 Gao, 891 F.3d at 78 (explaining that “the probative value of
5 a witness’s prior silence on particular facts depends on
6 whether those facts are ones the witness would reasonably
7 have been expected to disclose”).
8 Bilali’s credibility was further undermined by his
9 inconsistent accounts of other physical harm in his credible
10 fear interview with an asylum officer, application, and
11 testimony. As an initial matter, the agency did not err in
12 relying on Bilali’s statement during his credible fear
13 interview that he had never been physically harmed in Albania,
14 because the record of this interview bore sufficient indicia
15 of reliability so as to warrant evidentiary weight. See Ming
16 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). The record
17 is typewritten, setting forth clear questions and answers,
18 and reflects questions designed to elicit details of Bilali’s
19 asylum claim. Moreover, an interpreter was present, and
20 there is no indication that Bilali had difficulty
21 communicating. The agency was not compelled to accept
22 Bilali’s explanation that he misunderstood the question and 4 1 was under stress at the time, because Bilali was otherwise
2 responsive to the asylum officer’s questions throughout the
3 interview. See Hong Fei Gao, 891 F.3d at 76; Majidi v.
4 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
5 do more than offer a plausible explanation for his
6 inconsistent statements to secure relief; he must demonstrate
7 that a reasonable fact-finder would be compelled to credit
8 his testimony.” (internal citation and quotation marks
9 omitted)).
10 Bilali’s testimony that no one in his family suffered
11 any harm because of his political activities also conflicted
12 with his application and provided further support for the
13 adverse credibility finding. In his application, Bilali
14 claimed that his brother was shot in an attempt to reach
15 Bilali, and that opposition supporters attempted to rape his
16 sister and his first cousin. When probed on these alleged
17 incidents, however, Bilali testified that he was unsure if
18 anything happened to his family members at all.
19 The agency also reasonably determined that Bilali’s
20 documentary evidence did not rehabilitate his credibility.
21 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
22 (“An applicant’s failure to corroborate his or her testimony 5 1 may bear on credibility, because the absence of corroboration
2 in general makes an applicant unable to rehabilitate
3 testimony that has already been called into question.”). The
4 agency reasonably accorded little weight to letters whose
5 authors were unavailable to testify. See Y.C. v. Holder, 741
6 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s
7 determination of the weight afforded to an alien’s
8 documentary evidence.”). And the letters from Bilali’s
9 mother and local party leader did not corroborate Bilali’s
10 allegation of a 2013 attack because they did not discuss this
11 incident, despite Bilali’s testimony reflecting that his
12 mother had direct knowledge of it. Bilali also points to the
13 2016 State Department Human Rights Report for Albania as
14 supporting his petition, but this report contains only
15 generalized accounts of official abuse of power and
16 corruption rather than evidence of violence against members
17 of the Democratic Party, and is thus insufficient to support
18 his claim. Cf. Mu Xiang Lin v. U.S. Dep’t of Justice, 432
19 F.3d 156, 160 (2d Cir. 2005) (requiring “particularized
20 evidence” beyond general country conditions to support a CAT
21 claim).
22 6 1 Given that the omission and inconsistencies related
2 directly to material aspects of Bilali’s alleged past harm
3 and Bilali did not submit reliable corroboration that
4 rehabilitated his testimony, the totality of the
5 circumstances supports the agency’s adverse credibility
6 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xian Tuan
7 Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
8 (holding that material inconsistency regarding basis of
9 applicant’s asylum claim is substantial evidence for adverse
10 credibility determination). The adverse credibility
11 determination is dispositive of asylum, withholding of
12 removal, and CAT relief because all three forms of relief are
13 based on the same factual predicate. See Paul v. Gonzales,
14 444 F.3d 148, 156-57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court