18-3620 (L)
Lumaj v. Garland BIA Cassin, IJ
A206 364 417
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 12th day of April, two thousand twenty-one. 5 6 PRESENT: 7 ROBERT D. SACK, 8 DENNY CHIN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 EDMOND LUMAJ, 14 Petitioner, 15 16 v. 18-3620 (L), 17 19-2036 (Con) 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent.1 22 _____________________________________ 23 24 FOR PETITIONER: David A. Isaacson, Esq., Cyrus D. 25 Mehta & Partners PLLC, New York, 26 N.Y.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent.
2 FOR RESPONDENT: Brian M. Boynton, Assistant 3 Attorney General; Holly M. Smith, 4 Senior Litigation Counsel; Jesse 5 D. Lorenz, Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Edmond Lumaj, a native and citizen of 14 Albania, seeks review of (1) a June 27, 2019, decision of 15 the BIA denying his motion to reconsider, In re Edmond 16 Lumaj, No. A206 364 417 (B.I.A. June 27, 2019), and (2) a 17 November 8, 2018, decision of the BIA affirming a November 18 6, 2017, decision of an Immigration Judge (“IJ”) denying 19 his application for asylum, withholding of removal, and 20 relief under the Convention Against Torture (“CAT”), In re 21 Edmond Lumaj, No. A 206 364 417 (B.I.A. Nov. 8, 2018), aff’g 22 No. A 206 364 417 (Immig. Ct. N.Y. City Nov. 6, 2017). We 23 assume the parties’ familiarity with the underlying facts 24 and procedural history.
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1 A. Docket 18-3620(L), Order of Removal 2 Under the circumstances, we review the IJ’s decision as 3 modified and supplemented by the BIA. See Xue Hong Yang v. 4 U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan 5 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We 6 review adverse credibility determinations under the 7 substantial evidence standard and treat the agency’s 8 findings of fact as “conclusive unless any reasonable 9 adjudicator would be compelled to conclude to the 10 contrary.” 8 U.S.C. § 1252(b)(4)(B); see Hong Fei Gao v. 11 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the 12 totality of the circumstances, and all relevant factors, a 13 trier of fact may base a credibility determination on the 14 demeanor, candor, or responsiveness of the applicant . . ., 15 the inherent plausibility of the applicant’s account,” and 16 inconsistencies within and between an applicant’s 17 statements “without regard to whether” they go “to the 18 heart of the applicant’s claim, or any other relevant 19 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . 20 to an IJ’s credibility determination unless, from the 21 totality of the circumstances, it is plain that no
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1 reasonable fact-finder could make such an adverse 2 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 3 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. 4 Here, substantial evidence supports the agency’s 5 adverse credibility determination. The IJ reasonably 6 relied on significant inconsistencies between Lumaj’s 7 testimony and his prior statements. See 8 U.S.C. 8 § 1158(b)(1)(B)(iii). Lumaj testified that he never saw 9 the individual who rescued him and brought him home because 10 he had been beaten into unconsciousness; but he stated 11 during his initial interview that the man asked him if he 12 needed help. Moreover, Lumaj described the injuries he 13 sustained during the attack as consisting of cuts on his 14 wrists, forehead, and the back of his shoulder. The nurse 15 who treated him, however, wrote that he had bruising and 16 pain in his kidneys. 17 Lumaj alleged that he was attacked and beaten by 18 members of the Socialist Party on account of his 19 involvement with the Democratic Party. He testified that 20 he never joined a U.S. branch of the Democratic Party of 21 Albania, but he wrote in his application that he joined a
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1 U.S. branch of the Democratic Party in 2014 and feared 2 being tortured in Albania because of his political 3 involvement in the United States. Lumaj did not explain 4 the inconsistency about his political activities in the 5 United States and the IJ was not required to credit his 6 explanations for the other inconsistencies. See Majidi v. 7 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 8 must do more than offer a plausible explanation for his 9 inconsistent statements to secure relief; he must 10 demonstrate that a reasonable fact-finder would 11 be compelled to credit his testimony.” (internal quotation 12 marks omitted)). 13 Lumaj’s remaining evidence did not corroborate his 14 claim or rehabilitate his testimony. “An applicant’s 15 failure to corroborate his or her testimony may bear on 16 credibility, because the absence of corroboration in 17 general makes an applicant unable to rehabilitate testimony 18 that has already been called into question.” Biao Yang v. 19 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). A letter from 20 the Secretary of the Democratic Party of Albania did not 21 mention the June 2013 attack and thus did not corroborate
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1 the attack or Lumaj’s testimony that he had reported it to 2 the party. And Lumaj provided no evidence to corroborate 3 his allegation that his brother continued to receive 4 threats from the Socialist Party. See Chuilu Liu v. 5 Holder, 575 F.3d 193, 198 (2d Cir. 2009) (holding that “the 6 alien bears the ultimate burden of introducing such 7 evidence without prompting from the IJ”). 8 The BIA did not err in rejecting Lumaj’s argument that 9 he was deprived of due process because he could not 10 understand the interpreter. To establish a due process 11 claim, he had to show that he was denied the opportunity to 12 be heard “in a meaningful manner,” Burger v. Gonzales, 498 13 F.3d 131, 134 (2d Cir. 2007), and that the “alleged 14 shortcomings have prejudiced the outcome of his case,” 15 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 16 2008). The record supports the agency’s conclusion because 17 Lumaj had no difficulty understanding the interpreter on 18 direct and raised the issue only on cross examination when 19 he was asked about inconsistencies. Lumaj identified 20 Albanian as his best language at the beginning of the 21 hearing, without specifying a particular dialect. When
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1 Lumaj’s counsel raised the issue of dialect, the IJ 2 instructed Lumaj to let her know if he did not understand a 3 question, asked him whether he could understand the 4 interpreter, and agreed to slow down the questioning. 5 Lumaj did not show prejudice, i.e., that any difference in 6 dialect caused the inconsistencies that the agency relied 7 on. See Garcia-Villeda, 531 F.3d at 149. 8 Given the significant inconsistencies among Lumaj’s 9 testimony, his application, and the documentary evidence, 10 substantial evidence supports the adverse credibility 11 determination. See Likai Gao v. Barr, 968 F.3d 137, 145 12 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might 13 preclude an alien from showing that an IJ was compelled to 14 find him credible. Multiple inconsistencies would so 15 preclude even more forcefully.”). The adverse credibility 16 determination is dispositive of asylum, withholding of 17 removal, and CAT relief because all three claims are based 18 on the same factual predicate. See Paul v. Gonzales, 444 19 F.3d 148, 156–57 (2d Cir. 2006). 20 B. Docket 19-2036 (Con), Motion to Reconsider 21 We review the BIA’s denial of a motion to reconsider
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1 for abuse of discretion. Jin Ming Liu v. Gonzales, 439 2 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider must 3 specify errors of fact or law in the BIA’s decision and be 4 supported with pertinent authority. See 8 U.S.C. § 5 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. 6 U.S. Dep’t of Just., 265 F.3d 83, 90 (2d Cir. 2001). An 7 abuse of discretion may be found where the BIA’s decision 8 “provides no rational explanation, inexplicably departs 9 from established policies, is devoid of any reasoning, or 10 contains only summary or conclusory statements; that is to 11 say, where the Board has acted in an arbitrary or 12 capricious manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d 13 Cir. 2005) (internal quotation marks omitted). The BIA did 14 not abuse its discretion in denying Lumaj’s motion. 15 Lumaj argued that the BIA’s November 2018 decision was 16 invalid because it was issued while Matthew Whitaker was 17 Acting Attorney General, and his appointment was 18 constitutionally invalid. As the BIA found, it lacks 19 authority to rule on the constitutional challenges. See 20 Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) 21 (holding that “BIA does not have authority to
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1 adjudicate constitutional issues”); Matter of C–, 20 I. & 2 N. Dec. 529, 532 (B.I.A. 1992) (“[I]t is settled that the 3 immigration judge and this Board lack jurisdiction to rule 4 upon the constitutionality of the Act and the 5 regulations.”). Moreover, the BIA acts for the Attorney 6 General pursuant to authority given in statutes and 7 regulations, and there is no support for Lumaj’s position 8 that the BIA must suspend operations when there is a 9 challenge to the designation of an Acting Attorney General. 10 See 8 C.F.R. § 1003.1; see also United States v. Smith, 962 11 F.3d 755, 763–66 (4th Cir. 2020) (finding no violation of 12 Appointments Clause, but also concluding that even if 13 designation as Acting Attorney General was invalid, it did 14 not call criminal prosecution into question). 15 Lumaj’s claim that, under Pereira v. Sessions, 138 S. 16 Ct. 2105 (2018), the agency lacked jurisdiction because his 17 notice to appear did not state the time and place of his 18 hearing is foreclosed by Banegas Gomez v. Barr, 922 F.3d 19 101, 110–12 (2d Cir. 2019). A notice to appear that omits 20 a hearing date and time is sufficient to vest jurisdiction 21 in the immigration court where, as here, the noncitizen
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1 received subsequent hearing notices and appeared at 2 hearings. Id. at 112. 3 For the foregoing reasons, the petitions for review are 4 DENIED. All pending motions and applications are DENIED 5 and stays VACATED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court