20-1735 Hoti v. Garland BIA Cohen, IJ A206 635 671 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ERVIN HOTI, 15 Petitioner, 16 17 v. 20-1735 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Ervin Hoti, pro se, Bronxville, 25 NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General, Civil Division; 1 Holly M. Smith , Senior Litigation 2 Counsel; Sarah K. Pergolizzi, 3 Trial Attorney, Office of 4 Immigration Litigation, Civil 5 Division, United States Department 6 of Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Ervin Hoti, a native and citizen of Albania,
12 seeks review of a May 1, 2020 decision of the BIA affirming
13 an April 24, 2018 decision of an Immigration Judge (“IJ”),
14 which denied his application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Hoti, No. A206 635 671 (B.I.A. May 1, 2020),
17 aff’g No. A206 635 671 (Immig. Ct. N.Y. City Apr. 24, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed both the IJ’s and the BIA’s decisions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
23 adverse credibility determinations under a substantial
24 evidence standard, Hong Fei Gao v. Sessions, 891 F.3d 67, 76
2 1 (2d Cir. 2018), and “the administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary,” 8 U.S.C.
4 § 1252(b)(4)(B). “Considering the totality of the
5 circumstances, and all relevant factors, a trier of fact may
6 base a credibility determination on . . . the consistency
7 between the applicant’s or witness’s written and oral
8 statements (whenever made and whether or not under oath, and
9 considering the circumstances under which the statements were
10 made), the internal consistency of each such statement, [and]
11 the consistency of such statements with other evidence of
12 record . . . without regard to whether an inconsistency,
13 inaccuracy, or falsehood goes to the heart of the applicant’s
14 claim, or any other relevant factor.” 8 U.S.C.
15 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
16 determination unless, from the totality of the circumstances,
17 it is plain that no reasonable fact-finder could make such an
18 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
19 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
20 at 76. Substantial evidence supports the agency’s adverse
21 credibility determination given the numerous inconsistencies
3 1 in the record.
2 The agency reasonably relied on inconsistencies between
3 Hoti’s credible fear interview and his hearing testimony
4 regarding three incidents during which he was detained
5 following protests. See 8 U.S.C. § 1158(b)(1)(B)(iii). His
6 statements were inconsistent as to the location of the
7 protests, the identity of his abusers, whether he was
8 arrested, and whether and where he received medical
9 treatment. When confronted, Hoti explained that his hearing
10 testimony was correct and he may not have remembered correctly
11 during the interview because he was stressed and tired.
12 Then, on redirect examination, Hoti added for the first time
13 that he had not understood the interpreter well during the
14 credible fear interview because he spoke a different dialect.
15 In a subsequent affidavit, Hoti repeated those claims and
16 asserted that he had been reluctant to halt the interview to
17 obtain an interpreter in his dialect because he had been
18 informed that cancelling his interview would prolong his
19 detention.
20 The agency was not required to accept those shifting
21 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
4 1 Cir. 2005) (“A petitioner must do more than offer a plausible
2 explanation for his inconsistent statements to secure relief;
3 he must demonstrate that a reasonable fact-finder would be
4 compelled to credit his testimony.” (quotation marks
5 omitted)). The interview record reflects that Hoti stated
6 that he understood the interpreter, and his detailed and
7 responsive answers to the asylum officer’s questions did not
8 suggest any misunderstanding. Further, although Hoti told
9 the asylum officer that he felt tired, he claimed to be well
10 enough to proceed and declined an offer to halt the interview,
11 which took place about two weeks after he arrived in the
12 United States. Hoti does not argue that the interview record
13 is unreliable for any other reason, and the agency did not
14 err in finding it sufficiently reliable under the
15 circumstances, as it consisted of a typewritten document
16 setting forth the questions posed and Hoti’s responses, and
17 reflected that Hoti was informed of the interview’s purpose,
18 the importance of responding truthfully, and that he could
19 ask for clarification of anything he did not understand. See
20 Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).
21 The agency also reasonably relied on inconsistencies as
5 1 to whether and when Hoti joined the Democratic Party. See
2 8 U.S.C. § 1158(b)(1)(B)(iii). Hoti denied being a member
3 during his credible fear interview, claimed that he became a
4 member in October 2010 during his hearing, and submitted a
5 letter from the party asserting that he joined two months
6 later. That letter—and a letter from a different political
7 organization—also contradicted Hoti’s testimony regarding
8 whether he was active in those groups between February 2013
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20-1735 Hoti v. Garland BIA Cohen, IJ A206 635 671 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ERVIN HOTI, 15 Petitioner, 16 17 v. 20-1735 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Ervin Hoti, pro se, Bronxville, 25 NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General, Civil Division; 1 Holly M. Smith , Senior Litigation 2 Counsel; Sarah K. Pergolizzi, 3 Trial Attorney, Office of 4 Immigration Litigation, Civil 5 Division, United States Department 6 of Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Ervin Hoti, a native and citizen of Albania,
12 seeks review of a May 1, 2020 decision of the BIA affirming
13 an April 24, 2018 decision of an Immigration Judge (“IJ”),
14 which denied his application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Hoti, No. A206 635 671 (B.I.A. May 1, 2020),
17 aff’g No. A206 635 671 (Immig. Ct. N.Y. City Apr. 24, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed both the IJ’s and the BIA’s decisions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
23 adverse credibility determinations under a substantial
24 evidence standard, Hong Fei Gao v. Sessions, 891 F.3d 67, 76
2 1 (2d Cir. 2018), and “the administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary,” 8 U.S.C.
4 § 1252(b)(4)(B). “Considering the totality of the
5 circumstances, and all relevant factors, a trier of fact may
6 base a credibility determination on . . . the consistency
7 between the applicant’s or witness’s written and oral
8 statements (whenever made and whether or not under oath, and
9 considering the circumstances under which the statements were
10 made), the internal consistency of each such statement, [and]
11 the consistency of such statements with other evidence of
12 record . . . without regard to whether an inconsistency,
13 inaccuracy, or falsehood goes to the heart of the applicant’s
14 claim, or any other relevant factor.” 8 U.S.C.
15 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
16 determination unless, from the totality of the circumstances,
17 it is plain that no reasonable fact-finder could make such an
18 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
19 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
20 at 76. Substantial evidence supports the agency’s adverse
21 credibility determination given the numerous inconsistencies
3 1 in the record.
2 The agency reasonably relied on inconsistencies between
3 Hoti’s credible fear interview and his hearing testimony
4 regarding three incidents during which he was detained
5 following protests. See 8 U.S.C. § 1158(b)(1)(B)(iii). His
6 statements were inconsistent as to the location of the
7 protests, the identity of his abusers, whether he was
8 arrested, and whether and where he received medical
9 treatment. When confronted, Hoti explained that his hearing
10 testimony was correct and he may not have remembered correctly
11 during the interview because he was stressed and tired.
12 Then, on redirect examination, Hoti added for the first time
13 that he had not understood the interpreter well during the
14 credible fear interview because he spoke a different dialect.
15 In a subsequent affidavit, Hoti repeated those claims and
16 asserted that he had been reluctant to halt the interview to
17 obtain an interpreter in his dialect because he had been
18 informed that cancelling his interview would prolong his
19 detention.
20 The agency was not required to accept those shifting
21 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
4 1 Cir. 2005) (“A petitioner must do more than offer a plausible
2 explanation for his inconsistent statements to secure relief;
3 he must demonstrate that a reasonable fact-finder would be
4 compelled to credit his testimony.” (quotation marks
5 omitted)). The interview record reflects that Hoti stated
6 that he understood the interpreter, and his detailed and
7 responsive answers to the asylum officer’s questions did not
8 suggest any misunderstanding. Further, although Hoti told
9 the asylum officer that he felt tired, he claimed to be well
10 enough to proceed and declined an offer to halt the interview,
11 which took place about two weeks after he arrived in the
12 United States. Hoti does not argue that the interview record
13 is unreliable for any other reason, and the agency did not
14 err in finding it sufficiently reliable under the
15 circumstances, as it consisted of a typewritten document
16 setting forth the questions posed and Hoti’s responses, and
17 reflected that Hoti was informed of the interview’s purpose,
18 the importance of responding truthfully, and that he could
19 ask for clarification of anything he did not understand. See
20 Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).
21 The agency also reasonably relied on inconsistencies as
5 1 to whether and when Hoti joined the Democratic Party. See
2 8 U.S.C. § 1158(b)(1)(B)(iii). Hoti denied being a member
3 during his credible fear interview, claimed that he became a
4 member in October 2010 during his hearing, and submitted a
5 letter from the party asserting that he joined two months
6 later. That letter—and a letter from a different political
7 organization—also contradicted Hoti’s testimony regarding
8 whether he was active in those groups between February 2013
9 and February 2014, and what year he left Albania. The agency
10 was not required to accept Hoti’s explanation that one of the
11 letters contained a mistake, particularly as the errors
12 appeared in both letters. See Majidi, 430 F.3d at 80.
13 The agency reasonably relied on other inconsistencies as
14 well. Contrary to Hoti’s argument, the agency did not err
15 in relying on an internal inconsistency in his testimony
16 regarding the number of times he was harmed in Albania. See
17 8 U.S.C. § 1158(b)(1)(B)(iii). Hoti affirmed multiple times
18 that there were three instances of violence, referring to the
19 three times he was detained following protests; but, after
20 being reminded of a statement at the credible fear interview,
21 he added that he was also beaten by masked men after leaving
6 1 a protest. The agency also did not err in concluding that
2 Hoti’s testimony regarding being interviewed by a reporter
3 was unclear because Hoti initially claimed that he did not
4 know how the reporter had learned about him, but later
5 testified that the reporter had been sent by an organization
6 in which Hoti was an active member.
7 Hoti offered explanations for many of the inconsistencies
8 underlying the agency’s credibility finding. To the extent
9 that he did not offer an explanation, the IJ was not required
10 to solicit one before relying on the inconsistencies because
11 the record contained “dramatically different accounts” of the
12 events that were the basis for Hoti’s claims. Majidi, 430
13 F.3d at 81 (quotation marks omitted).
14 The multiple inconsistencies relating to Hoti’s claims
15 of persecution provide substantial evidence for the adverse
16 credibility determination. See Xiu Xia Lin, 534 F.3d at 167;
17 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d
18 Cir. 2006) (holding that “a material inconsistency in an
19 aspect of [an applicant’s] story that served as an example of
20 the very persecution from which he sought asylum . . .
21 afforded substantial evidence to support the adverse
7 1 credibility finding” (quotation marks and citation omitted));
2 see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir.
3 2020) (“[E]ven a single inconsistency might preclude an alien
4 from showing that an IJ was compelled to find him credible.
5 Multiple inconsistencies would so preclude even more
6 forcefully.”). The adverse credibility determination is
7 dispositive of asylum, withholding of removal, and CAT relief
8 because all three forms of relief are based on the same
9 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–
10 57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court