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. 1 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.
2 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
3 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
4 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
5 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
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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. 1 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.
2 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
3 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
4 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
5 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
6 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
7 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
8 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
9 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