Lekocaj v. Barr

Opinion

18-2773 Lekocaj v. Barr BIA

Christensen, IJ

A206 189 345

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 9th day of October, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ARJANE LEKOCAJ, 14 Petitioner, 15 16 v. 18-2773 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael P. DiRaimondo, Marialaina 24 L. Masi, Stacy A. Huber, 25 DiRaimondo & Masi, PC, Bohemia, 26 NY. 27 28 FOR RESPONDENT: Matthew A. Connelly, Senior

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1 Litigation Counsel, Lisa M. 2 Arnold, Senior Litigation Counsel, 3 Office of Immigration Litigation, 4 for Ethan P. Davis, Acting 5 Assistant Attorney General, Civil 6 Division, United States Department 7 of Justice, Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Arjane Lekocaj, a native and citizen of 13 Albania, seeks review of an August 16, 2018 decision of the 14 BIA affirming an August 16, 2017 decision of an Immigration 15 Judge (“IJ”) denying Lekocaj’s application for asylum, 16 withholding of removal, and relief under the Convention 17 Against Torture (“CAT”). In re Lekocaj, No. A 206 189 345 18 (B.I.A. Aug. 16, 2018), aff’g No. A 206 189 345 (Immig. Ct. 19 N.Y. City Aug. 16, 2017). We assume the parties’ familiarity 20 with the underlying facts and procedural history. 21 We have reviewed both the IJ’s and the BIA’s decisions. 22 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 23 2005). The standards of review are well established. See 8 24 U.S.C. § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 25 76 (2d Cir. 2018); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 26 2013).

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1 Agency’s Jurisdiction 2 Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), 3 Lekocaj first argues that her notice to appear (“NTA”) was 4 insufficient to confer jurisdiction because it did not 5 include a hearing date or time. This argument is foreclosed 6 by our decision in Banegas Gomez v. Barr, in which we held 7 that Pereira does not “void jurisdiction in cases in which an 8 NTA omits a hearing time or place” and that “an NTA that omits 9 information regarding the time and date of the initial removal 10 hearing is nevertheless adequate to vest jurisdiction in the 11 Immigration Court, at least so long as a notice of hearing 12 specifying this information is later sent to the alien.” 922 13 F.3d 101, 110, 112 (2d Cir. 2019). Lekocaj’s NTA did not 14 specify the time and date of her hearings, but she does not 15 dispute that she received a hearing notice supplying the 16 omitted information. The immigration court thus had 17 jurisdiction. Id. at 112. 18 Credibility 19 Lekocaj also challenges the agency’s adverse credibility 20 determination. The agency may, “[c]onsidering the totality 21 of the circumstances . . . base a credibility determination 22 on the demeanor, candor, or responsiveness of the applicant,”

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1 the “inherent plausibility” of her account, and 2 inconsistencies in her statements or between her statements 3 and other evidence, without regard to whether they go “to the 4 heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 6 determination unless . . . it is plain that no reasonable 7 fact-finder could make such an adverse credibility ruling.” 8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 9 accord Hong Fei Gao, 891 F.3d at 76. The agency’s adverse 10 credibility determination here is supported by substantial 11 evidence. 12 The agency reasonably relied on discrepancies between 13 Lekocaj’s application and her testimony. See 8 U.S.C. 14 § 1158(b)(1)(B)(iii). At the hearing, she testified that a 15 group of people sped at her with a car outside her school 16 library, nearly hitting her, and warned her that “next time” 17 she would be “r[u]n over . . . like an insect.” Certified 18 Administrative Record (“CAR”) at 88. The agency reasonably 19 concluded that the omission of this event from Lekocaj’s 20 application undermined her credibility because it was one she 21 would reasonably be expected to include. This was the sole 22 incident in which she claimed to have been in imminent

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1 physical danger, and she claimed that this incident, in 2 conjunction with her father’s beating a day earlier (about 3 which she did provide specific details in her application), 4 prompted her decision to seek asylum. See Hong Fei Gao, 891 5 F.3d at 78–79 (“[I]n assessing the probative value of the 6 omission of certain facts, an IJ should consider whether those 7 facts are ones that a credible petitioner would reasonably 8 have been expected to disclose under the relevant 9 circumstances.”); cf. Pavlova v. INS, 441 F.3d 82, 90 (2d 10 Cir. 2006) (noting that “asylum applicants are not required 11 to list every incident of persecution [in] their 12 [applications],” and finding error in agency’s reliance on 13 omissions where application “described . . . persecution in 14 general terms, mentioning no specific incidents”). Lekocaj 15 also presented inconsistent accounts of abuses against her 16 father in her application and testimony. In her application 17 she asserted that her father was threatened, “cursed,” and 18 “pressure[d]” prior to the election and beaten by a group of 19 three men after the election. CAR at 309. But at her hearing 20 she testified that her father was also beaten unconscious by 21 a group of masked men prior to the election. Contrary to 22 Lecokaj’s argument that her testimony merely supplemented her

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1 application, the testimony conflicted with her prior 2 characterization of the abuses against her father in the 3 period leading up to the election. 4 The agency also reasonably relied on omissions from the 5 first letter from Lekocaj’s father. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 81 (noting 7 that “an omission by a third party may form a basis for an 8 adverse credibility determination”). In that letter, dated 9 March 2015, her father recounted being threatened and beaten 10 prior to the June 2013 election, and claimed that these events 11 left him convinced that his family would suffer “political 12 retaliation” and that his daughter would be “denied any right 13 and her life.” CAR at 248–49. His letter did not mention a 14 second beating after the election or that Lekocaj was 15 threatened by a speeding car the following day, even though 16 he would reasonably be expected to disclose both of these 17 events in a letter explaining why be believed Lekocaj was 18 unsafe in Albania. See Hong Fei Gao, 891 F.3d at 78–79. 19 The agency was not required to accept Lekocaj’s 20 explanations for the omissions in her application and her 21 father’s letter because her explanations did not make sense. 22 In attempting to explain the omission of her father’s pre-

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1 election beating from her application, she claimed that she 2 believed that only the most recent incidents were relevant, 3 that her father would include this event in his statement, 4 and that she would be able to provide “more details” during 5 her hearing. CAR at 82. But Lekocaj also omitted the most 6 recent event from her statement, she included other events 7 that were included in her father’s first letter, and she 8 provided more detail about less probative events. See Majidi 9 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 10 must do more than offer a plausible explanation for his 11 inconsistent statements to secure relief; he must demonstrate 12 that a reasonable fact-finder would be compelled to credit 13 his testimony.” (quotation marks omitted)). Lekocaj claimed 14 that she asked her father to provide a supplementary letter 15 because his first letter was focused on events decades in the 16 past, but this does not explain why his first letter included 17 the pre-election events of June 2013 but excluded events a 18 few weeks later. 19 Having questioned Lekocaj’s credibility, the agency 20 reasonably relied on her failure to rehabilitate her 21 testimony with reliable corroborating evidence. “An 22 applicant’s failure to corroborate his or her testimony may

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1 bear on credibility, because the absence of corroboration in 2 general makes an applicant unable to rehabilitate testimony 3 that has already been called into question.” Biao Yang v. 4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As the agency 5 noted, portions of Lekocaj’s father’s second letter were 6 identical to her mother’s letter, and in the identical 7 portions, both of her parents claimed that she called “me” 8 following the incident with the car. CAR at 259, 275. The 9 agency reasonably declined to credit the letters based on the 10 similarities and resulting inconsistency. See Singh v. BIA, 11 438 F.3d 145, 148 (2d Cir. 2006) (reasoning that “nearly 12 identical language” in affidavits from purportedly different 13 authors in support of the same application undermined 14 petitioner’s credibility). It was not required to accept 15 Lekocaj’s explanations that her parents may have written the 16 letters together or similarities may have been the result of 17 the translation, or that her father merely meant that he had 18 listened to Lekocaj’s call to her mother. See Majidi, 430 19 F.3d at 80. The agency also reasonably gave diminished 20 weight to a letter from Lekocaj’s friend because the friend 21 was unavailable for cross-examination. See Matter of H-L-H- 22 & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that

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1 unsworn letters from the applicant’s friends and family did 2 not provide substantial support for the applicant’s claims 3 because they were from interested witnesses not subject to 4 cross-examination), overruled on other grounds by Hui Lin 5 Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012); see 6 also Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) 7 (deferring to agency’s decision to give little weight to 8 letter from applicant’s spouse in China). The letter from 9 the Democratic Party did not corroborate the threat against 10 Lekocaj or her father’s July 2013 beating, even though it 11 discussed Lekocaj’s role in the party, threats against her 12 father, and his June 2013 beating. And the expert report 13 concluded that Lekocaj’s allegations were consistent with the 14 country conditions, but the expert did not claim to have any 15 personal knowledge of the specific events underlying 16 Lekocaj’s claim. 17 Given the significant discrepancies between Lekocaj’s 18 testimony, her application, and her father’s first letter, as 19 well as the lack of reliable evidence to corroborate her most 20 significant allegations, the agency’s adverse credibility 21 determination is supported by substantial evidence. See 8 22 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

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1 Because all of her claims were predicated on the same 2 discredited testimony, that determination is dispositive of 3 all forms of relief. See Paul v. Gonzales, 444 F.3d 148, 4 156–57 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. All pending motions and applications are DENIED and 7 stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court