17-2608 Mecaj v. Barr BIA Hom, IJ A200 589 904
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 6th day of June, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KLAUDIO MECAJ, 14 Petitioner, 15 16 v. 17-2608 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Marotta, Esq., Vernon, NJ. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Shelley R. Goad, 27 Assistant Director; Jennifer A. 28 Singer, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Klaudio Mecaj, a native and citizen of
6 Albania, seeks review of a July 28, 2017, decision of the BIA
7 affirming a January 26, 2017, decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Klaudio
10 Mecaj, No. A200 589 904 (B.I.A. July 28, 2017), aff’g No.
11 A200 589 904 (Immig. Ct. N.Y. City Jan. 26, 2017). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well established.
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
19 510, 513 (2d Cir. 2009); Pierre v. Holder, 588 F.3d 767, 772
20 (2d Cir. 2009).
21 Mecaj argues that the IJ was biased and deprived him of
22 due process by (1) setting an arbitrary deadline for
2 1 corroborating evidence, (2) questioning him too aggressively,
2 (3) relying on the omission of a detention from his asylum
3 application in finding him not credible, and (4) refusing to
4 credit Dr. Bernd Fischer’s expert affidavit on Albania.
5 Mecaj has failed to establish bias.
6 “To establish a violation of due process, an alien must
7 show that []he was denied a full and fair opportunity to
8 present h[is] claims or that [he was] otherwise deprived . .
9 . of fundamental fairness.” Burger v. Gonzales, 498 F.3d
10 131, 134 (2d Cir. 2007) (internal quotation marks and
11 citations omitted). Remand may be required “when an IJ’s
12 conduct results in the appearance of bias or hostility such
13 that we cannot conduct a meaningful review.” Ali v. Mukasey,
14 529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam v. Gonzales,
15 469 F.3d 53, 55 (2d Cir. 2006)); see also Guo-Le Huang v.
16 Gonzales, 453 F.3d 142, 148 (2d Cir. 2006).
17 “[A]n IJ has broad discretion to set and extend filing
18 deadlines,” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.
19 2008), and when “an application or document is not filed
20 within the time set by the [IJ], the opportunity to file that
21 application or document shall be deemed waived,” 8 C.F.R.
22 § 1003.31(c). The IJ provided Mecaj almost two years to
3 1 gather and submit corroborating evidence, and the late
2 evidence could have been obtained before the deadline and
3 thus could have been timely filed. Counsel’s explanation
4 that she followed the default deadline in the Immigration
5 Court Practice Manual is unavailing because the Manual
6 permits IJs to set their own deadlines and warns that failure
7 to comply with those deadlines “may have serious
8 consequences,” such as the preclusion of evidence.
9 Immigration Court Practice Manual § 3.1(b), (d)(ii).
10 Accordingly, we find no abuse of discretion or bias in the
11 IJ’s decision declining to admit Mecaj’s late-filed evidence.
12 Nor did the IJ abuse his discretion or exhibit bias in
13 questioning Mecaj. “[A]n IJ is not merely the fact finder
14 and adjudicator, but also has an obligation to establish and
15 develop the record.” Islam, 469 F.3d at 55. “During the
16 course of developing a sound and useful record, an IJ must,
17 when appropriate, question an applicant in order, for
18 example, to probe inconsistencies and develop the relevant
19 facts.” Id. Mecaj concedes that the IJ’s questioning was
20 not antagonistic, and a review of the record reveals that the
21 IJ posed questions relevant to Mecaj’s claims for relief.
22 There is also no merit to Mecaj’s contention that the IJ
4 1 exhibited bias by relying on Mecaj’s omission of a brief
2 detention from the asylum application. An IJ may consider
3 an omission “as long as the ‘totality of the circumstances’
4 establishes that an asylum applicant is not credible.” Xiu
5 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (quoting
6 8 U.S.C. § 1158(b)(1)(B)(iii)). Further, it was reasonable
7 for the IJ to find this omission significant because the
8 asylum application form asks whether the applicant has ever
9 been detained and, if so, instructs the applicant to explain
10 the circumstances, Mecaj, however, did not list his own
11 detention for protesting despite discussing other Democratic
12 Party members being prevented from protesting. See Hong Fei
13 Gao v. Sessions, 891 F.3d 67, 78-79 (2d Cir. 2018) (“[I]n
14 assessing the probative value of the omission of certain
15 facts, an IJ should consider whether those facts are ones
16 that a credible petitioner would reasonably have been
17 expected to disclose under the relevant circumstances.”).
18 Finally, the IJ did not err or exhibit bias in giving
19 the expert affidavit diminished evidentiary weight because
20 Dr. Fischer did not testify and thus was not subject to cross-
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17-2608 Mecaj v. Barr BIA Hom, IJ A200 589 904
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 6th day of June, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 BARRINGTON D. PARKER, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KLAUDIO MECAJ, 14 Petitioner, 15 16 v. 17-2608 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Marotta, Esq., Vernon, NJ. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Shelley R. Goad, 27 Assistant Director; Jennifer A. 28 Singer, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Klaudio Mecaj, a native and citizen of
6 Albania, seeks review of a July 28, 2017, decision of the BIA
7 affirming a January 26, 2017, decision of an Immigration Judge
8 (“IJ”) denying asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Klaudio
10 Mecaj, No. A200 589 904 (B.I.A. July 28, 2017), aff’g No.
11 A200 589 904 (Immig. Ct. N.Y. City Jan. 26, 2017). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well established.
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
19 510, 513 (2d Cir. 2009); Pierre v. Holder, 588 F.3d 767, 772
20 (2d Cir. 2009).
21 Mecaj argues that the IJ was biased and deprived him of
22 due process by (1) setting an arbitrary deadline for
2 1 corroborating evidence, (2) questioning him too aggressively,
2 (3) relying on the omission of a detention from his asylum
3 application in finding him not credible, and (4) refusing to
4 credit Dr. Bernd Fischer’s expert affidavit on Albania.
5 Mecaj has failed to establish bias.
6 “To establish a violation of due process, an alien must
7 show that []he was denied a full and fair opportunity to
8 present h[is] claims or that [he was] otherwise deprived . .
9 . of fundamental fairness.” Burger v. Gonzales, 498 F.3d
10 131, 134 (2d Cir. 2007) (internal quotation marks and
11 citations omitted). Remand may be required “when an IJ’s
12 conduct results in the appearance of bias or hostility such
13 that we cannot conduct a meaningful review.” Ali v. Mukasey,
14 529 F.3d 478, 490 (2d Cir. 2008) (quoting Islam v. Gonzales,
15 469 F.3d 53, 55 (2d Cir. 2006)); see also Guo-Le Huang v.
16 Gonzales, 453 F.3d 142, 148 (2d Cir. 2006).
17 “[A]n IJ has broad discretion to set and extend filing
18 deadlines,” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.
19 2008), and when “an application or document is not filed
20 within the time set by the [IJ], the opportunity to file that
21 application or document shall be deemed waived,” 8 C.F.R.
22 § 1003.31(c). The IJ provided Mecaj almost two years to
3 1 gather and submit corroborating evidence, and the late
2 evidence could have been obtained before the deadline and
3 thus could have been timely filed. Counsel’s explanation
4 that she followed the default deadline in the Immigration
5 Court Practice Manual is unavailing because the Manual
6 permits IJs to set their own deadlines and warns that failure
7 to comply with those deadlines “may have serious
8 consequences,” such as the preclusion of evidence.
9 Immigration Court Practice Manual § 3.1(b), (d)(ii).
10 Accordingly, we find no abuse of discretion or bias in the
11 IJ’s decision declining to admit Mecaj’s late-filed evidence.
12 Nor did the IJ abuse his discretion or exhibit bias in
13 questioning Mecaj. “[A]n IJ is not merely the fact finder
14 and adjudicator, but also has an obligation to establish and
15 develop the record.” Islam, 469 F.3d at 55. “During the
16 course of developing a sound and useful record, an IJ must,
17 when appropriate, question an applicant in order, for
18 example, to probe inconsistencies and develop the relevant
19 facts.” Id. Mecaj concedes that the IJ’s questioning was
20 not antagonistic, and a review of the record reveals that the
21 IJ posed questions relevant to Mecaj’s claims for relief.
22 There is also no merit to Mecaj’s contention that the IJ
4 1 exhibited bias by relying on Mecaj’s omission of a brief
2 detention from the asylum application. An IJ may consider
3 an omission “as long as the ‘totality of the circumstances’
4 establishes that an asylum applicant is not credible.” Xiu
5 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (quoting
6 8 U.S.C. § 1158(b)(1)(B)(iii)). Further, it was reasonable
7 for the IJ to find this omission significant because the
8 asylum application form asks whether the applicant has ever
9 been detained and, if so, instructs the applicant to explain
10 the circumstances, Mecaj, however, did not list his own
11 detention for protesting despite discussing other Democratic
12 Party members being prevented from protesting. See Hong Fei
13 Gao v. Sessions, 891 F.3d 67, 78-79 (2d Cir. 2018) (“[I]n
14 assessing the probative value of the omission of certain
15 facts, an IJ should consider whether those facts are ones
16 that a credible petitioner would reasonably have been
17 expected to disclose under the relevant circumstances.”).
18 Finally, the IJ did not err or exhibit bias in giving
19 the expert affidavit diminished evidentiary weight because
20 Dr. Fischer did not testify and thus was not subject to cross-
21 examination. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir.
22 2013) (“We generally defer to the agency’s evaluation of the
5 1 weight to be afforded an applicant’s documentary evidence.”);
2 see also Matter of H-L-H-, 25 I. & N. Dec. 209, 215-16 & n.5
3 (BIA 2010) (declining to credit village committee notices
4 that were unauthenticated, unsigned, and prepared for
5 purposes of removal proceedings), overruled on other grounds
6 by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir.
7 2012). Regardless, as the BIA noted, even if credited, the
8 affidavit did not independently corroborate Mecaj’s asylum
9 claim.
10 Accordingly, we deny the petition because Mecaj has not
11 shown bias or error in the IJ’s decision denying relief on
12 credibility and lack of corroboration grounds. See Burger,
13 498 F.3d at 134; see also Ali, 529 F.3d at 490. There is
14 nothing further for us to address as Mecaj does not otherwise
15 challenge the credibility and corroboration rulings, and he
16 did not exhaust any challenge to the adverse credibility
17 finding on appeal to the BIA. See Yueqing Zhang v. Gonzales,
18 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that
19 petitioner abandons issues and claims not raised in his
20 brief); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
21 119-22 (2d Cir. 2007) (holding that issue exhaustion is
22 mandatory).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court