17-3690 Pepaj v. Barr BIA Christensen, IJ A206 140 284
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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 16th day of December, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MIKEL PEPAJ, 14 Petitioner, 15 16 v. 17-3690 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael P. DiRaimondo, Melville, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Shelley R. Goad, 28 Assistant Director; Carmel A. 29 Morgan, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Mikel Pepaj, a native and citizen of Albania,
6 seeks review of the BIA’s affirmance of an Immigration Judge’s
7 (“IJ”) denial of Pepaj’s application for asylum, withholding
8 of removal, and relief under the Convention Against Torture
9 (“CAT”). In re Mikel Pepaj, No. A 206 140 284 (B.I.A. Oct.
10 16, 2017), aff’g No. A 206 140 284 (Immig. Ct. N.Y. City Feb.
11 7, 2017).
12 Under the circumstances, we have reviewed the IJ’s
13 decision as modified by the BIA. See Xue Hong Yang v. U.S.
14 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying
15 well established standards of review. See 8 U.S.C.
16 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
17 (2d Cir. 2018). In so doing, we assume the parties’
18 familiarity with the underlying facts and procedural history
19 of this case, which we reference only as necessary to explain
20 our decision to deny the petition.
21 “[A] trier of fact may base a credibility determination
22 on the demeanor, candor, or responsiveness of the applicant 2 1 or witness, the inherent plausibility of the applicant’s or
2 witness’s account, [and] the consistency between the
3 applicant’s or witness’s written and oral statements . . .
4 without regard to whether an inconsistency, inaccuracy, or
5 falsehood goes to the heart of the applicant’s
6 claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
7 defer . . . to an IJ’s credibility determination unless, from
8 the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse credibility
10 ruling.” Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008);
11 accord Hong Fei Gao, 891 F.3d at 76. Applying these
12 standards, we conclude that substantial evidence supports the
13 agency’s credibility determination.
14 First, the agency did not err in relying on Pepaj’s
15 credible fear interview to assess his credibility. An IJ may
16 rely on statements made at a credible fear interview where
17 the interview record “displays the hallmarks of reliability”
18 and “represents a sufficiently accurate record of the alien’s
19 statements to merit consideration.” Ming Zhang v. Holder, 585
20 F.3d 715, 721, 724 (2d Cir. 2009) (internal quotation marks
21 omitted). The record here bears sufficient indicia of such
22 reliability: the asylum officer’s notes were typewritten, 3 1 Pepaj initialed each page, the officer asked open-ended
2 questions, and Pepaj expressed no difficulty understanding
3 the questions or the interpreter. See Ramsameachire v.
4 Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004) (finding airport
5 interview record had “hallmarks of accuracy and reliability,
6 as it [wa]s typewritten, signed by [the petitioner], and
7 initialed by h[er] on each page”).
8 Second, in determining that Pepaj was not credible, the
9 IJ reasonably relied on Pepaj’s contradictory descriptions of
10 his 2013 attack as contained in his interview statements,
11 asylum application, and hearing testimony. See Xian Tuan Ye
12 v. Dep’t of Homeland Sec., 447 F.3d 289, 295 (2d Cir. 2006)
13 (holding that “material inconsistency in an aspect of [the]
14 story that served as an example of the very persecution from
15 which [petitioner] sought asylum . . . afforded substantial
16 evidence to support the adverse credibility finding”
17 (internal citation and quotation marks omitted)). For
18 example, at the hearing, Pepaj testified that his attackers
19 “threw” a steel pipe at him, while, at his earlier interview,
20 he had stated that attackers “beat” him with a stick. Pepaj’s
21 only explanation for the discrepancy was that “somehow the
22 steel pipe caught [his] hand.” Certified Administrative 4 1 Record at 108. The IJ was not required to accept Pepaj’s
2 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
3 Cir. 2005)(“A petitioner must do more than offer a plausible
4 explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be
6 compelled to credit his testimony.” (internal quotation marks
7 omitted)).
8 Pepaj now attempts to reconcile his varying accounts by
9 stating that he “expected” his attackers to beat him. Pet.
10 Br. at 20-21. However, he did not offer this explanation to
11 the BIA, and we will not attempt to reconcile his inconsistent
12 statements after the fact. See Lin Zhong v. U.S. Dep’t of
13 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (limiting review to
14 grounds relied on by BIA).
15 Additional inconsistencies further support the agency’s
16 adverse credibility determination, notably Pepaj’s
17 inconsistent accounts of whether his friends faced
18 political persecution for their involvement with the
19 Democratic Party. See 8 U.S.C. § 1158(b)(1)(B)(iii).
20 Pepaj’s application reported that, in 2013, his friends
21 were “harassed by Socialist thugs” for their political
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17-3690 Pepaj v. Barr BIA Christensen, IJ A206 140 284
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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 16th day of December, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MIKEL PEPAJ, 14 Petitioner, 15 16 v. 17-3690 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael P. DiRaimondo, Melville, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Shelley R. Goad, 28 Assistant Director; Carmel A. 29 Morgan, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Mikel Pepaj, a native and citizen of Albania,
6 seeks review of the BIA’s affirmance of an Immigration Judge’s
7 (“IJ”) denial of Pepaj’s application for asylum, withholding
8 of removal, and relief under the Convention Against Torture
9 (“CAT”). In re Mikel Pepaj, No. A 206 140 284 (B.I.A. Oct.
10 16, 2017), aff’g No. A 206 140 284 (Immig. Ct. N.Y. City Feb.
11 7, 2017).
12 Under the circumstances, we have reviewed the IJ’s
13 decision as modified by the BIA. See Xue Hong Yang v. U.S.
14 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying
15 well established standards of review. See 8 U.S.C.
16 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
17 (2d Cir. 2018). In so doing, we assume the parties’
18 familiarity with the underlying facts and procedural history
19 of this case, which we reference only as necessary to explain
20 our decision to deny the petition.
21 “[A] trier of fact may base a credibility determination
22 on the demeanor, candor, or responsiveness of the applicant 2 1 or witness, the inherent plausibility of the applicant’s or
2 witness’s account, [and] the consistency between the
3 applicant’s or witness’s written and oral statements . . .
4 without regard to whether an inconsistency, inaccuracy, or
5 falsehood goes to the heart of the applicant’s
6 claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
7 defer . . . to an IJ’s credibility determination unless, from
8 the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse credibility
10 ruling.” Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008);
11 accord Hong Fei Gao, 891 F.3d at 76. Applying these
12 standards, we conclude that substantial evidence supports the
13 agency’s credibility determination.
14 First, the agency did not err in relying on Pepaj’s
15 credible fear interview to assess his credibility. An IJ may
16 rely on statements made at a credible fear interview where
17 the interview record “displays the hallmarks of reliability”
18 and “represents a sufficiently accurate record of the alien’s
19 statements to merit consideration.” Ming Zhang v. Holder, 585
20 F.3d 715, 721, 724 (2d Cir. 2009) (internal quotation marks
21 omitted). The record here bears sufficient indicia of such
22 reliability: the asylum officer’s notes were typewritten, 3 1 Pepaj initialed each page, the officer asked open-ended
2 questions, and Pepaj expressed no difficulty understanding
3 the questions or the interpreter. See Ramsameachire v.
4 Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004) (finding airport
5 interview record had “hallmarks of accuracy and reliability,
6 as it [wa]s typewritten, signed by [the petitioner], and
7 initialed by h[er] on each page”).
8 Second, in determining that Pepaj was not credible, the
9 IJ reasonably relied on Pepaj’s contradictory descriptions of
10 his 2013 attack as contained in his interview statements,
11 asylum application, and hearing testimony. See Xian Tuan Ye
12 v. Dep’t of Homeland Sec., 447 F.3d 289, 295 (2d Cir. 2006)
13 (holding that “material inconsistency in an aspect of [the]
14 story that served as an example of the very persecution from
15 which [petitioner] sought asylum . . . afforded substantial
16 evidence to support the adverse credibility finding”
17 (internal citation and quotation marks omitted)). For
18 example, at the hearing, Pepaj testified that his attackers
19 “threw” a steel pipe at him, while, at his earlier interview,
20 he had stated that attackers “beat” him with a stick. Pepaj’s
21 only explanation for the discrepancy was that “somehow the
22 steel pipe caught [his] hand.” Certified Administrative 4 1 Record at 108. The IJ was not required to accept Pepaj’s
2 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
3 Cir. 2005)(“A petitioner must do more than offer a plausible
4 explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be
6 compelled to credit his testimony.” (internal quotation marks
7 omitted)).
8 Pepaj now attempts to reconcile his varying accounts by
9 stating that he “expected” his attackers to beat him. Pet.
10 Br. at 20-21. However, he did not offer this explanation to
11 the BIA, and we will not attempt to reconcile his inconsistent
12 statements after the fact. See Lin Zhong v. U.S. Dep’t of
13 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (limiting review to
14 grounds relied on by BIA).
15 Additional inconsistencies further support the agency’s
16 adverse credibility determination, notably Pepaj’s
17 inconsistent accounts of whether his friends faced
18 political persecution for their involvement with the
19 Democratic Party. See 8 U.S.C. § 1158(b)(1)(B)(iii).
20 Pepaj’s application reported that, in 2013, his friends
21 were “harassed by Socialist thugs” for their political
22 activities and “attacked by a group of Socialists who 5 1 screamed and called them traitors.” Certified Record on
2 Appeal at 218. But Pepaj testified otherwise at the
3 hearing, stating that his “close friends” had no problems,
4 “but some friends I knew . . . [had] problems during the
5 election, but I don’t know exactly what kind of problems
6 they had.” Certified Record on Appeal at 118. When
7 pressed, Pepaj could not identify a single incident
8 regarding these other friends, and, when confronted with
9 his asylum application, Pepaj responded only that he did
10 not remember what he wrote in that application. Pepaj’s
11 lack of knowledge, and even repudiation, of central facts
12 supporting his asylum application undermined his
13 credibility.
14 Finally, Pepaj’s documentary evidence does not
15 corroborate his alleged attacks or rehabilitate his
16 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
17 (2d Cir. 2007) (“An applicant’s failure to corroborate his or
18 her testimony may bear on credibility, because the absence of
19 corroboration in general makes an applicant unable to
20 rehabilitate testimony that has already been called into
21 question.”).
22 6 1 Pepaj testified that after the 2009 attack, his mother
2 saw him bleeding and, later that day, his father asked him if
3 he “knew the people that did this.” He also testified that
4 he showed his parents his bruised finger on the day of the
5 2013 attack. But his parents’ letter does not mention
6 physical attacks, and neither do the letters from the
7 Democratic Party in Albania or the “Association of the Ex
8 Political[ly] Persecuted.” See Hong Fei Gao, 891 F.3d at 78
9 (stating that witness’s “silence on particular facts depends
10 on whether those facts are ones the witness would reasonably
11 have been expected to disclose”). Furthermore, at the
12 hearing, Pepaj seemed unsure of the contents of those letters,
13 and testified that he did not know why the information was
14 omitted. In short, the documentary evidence does not
15 corroborate Pepaj’s account of physical attacks.
16 Accordingly, the “totality of the circumstances”
17 supports the adverse credibility determination. See Xiu Xia
18 Lin, 534 F.3d at 167. That determination is dispositive of
19 asylum, withholding of removal, and CAT relief because all
20 three claims are based on the same factual predicate. See
21 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
7 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