17-1752 Torba v. Barr BIA Wright, IJ A078 280 102 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 7th day of August, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 _____________________________________ 12 13 ERMAL TORBA, 14 Petitioner, 15 16 v. 17-1752 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jon E. Jessen, Stamford, CT. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Song Park, 27 Senior Litigation Counsel; 28 Victoria M. Braga, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, 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 Ermal Torba, a native and citizen of Albania,
6 seeks review of a May 4, 2017, decision of the BIA affirming
7 a March 2, 2016, decision of an Immigration Judge (“IJ”)
8 denying Torba’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Ermal Torba, No. A 078 280 102 (B.I.A. May 4,
11 2017), aff’g No. A 078 280 102 (Immig. Ct. N.Y. City Mar. 2,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as supplemented by
15 the BIA. See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.
16 2007). The standards of review are well established. See 8
17 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513
18 (2d Cir. 2009). Substantial evidence supports the agency’s
19 determination that Torba’s claim of past persecution based on
20 his political opinion was not credible. Nor did the agency
21 err in finding that Torba did not demonstrate a well-founded
22 fear of future persecution on account of a blood feud. 2 1 Adverse Credibility Determination
2 Torba filed for asylum before May 11, 2005, so his
3 application is not subject to the credibility provisions of
4 the REAL ID Act. See REAL ID Act of 2005, Div. B of Pub. L.
5 No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.
6 § 1158(b)(1)(B)(iii)); In re S-B-, 24 I. & N. Dec. 42, 45
7 (BIA 2006). “We review the IJ’s adverse credibility finding
8 under the substantial evidence standard, which requires that
9 the decision be supported by ‘reasonable, substantial and
10 probative evidence in the record.’” Diallo v. U.S. Dep’t of
11 Justice, 548 F.3d 232, 234 (2d Cir. 2008) (quoting Lin Zhong
12 v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir. 2007)).
13 Inconsistencies and other discrepancies in the evidence are
14 often sufficient to support an adverse credibility
15 determination, but they “need not necessarily be fatal . . .
16 if the disparities are relatively minor and isolated and do
17 not concern material facts,” and the testimony is otherwise
18 “generally consistent, rational, and believable.” Id.
19 (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
20 335 (2d Cir. 2006)). A discrepancy generally must be
21 substantial when measured against the record as a whole,
22 Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003), but 3 1 “even where an IJ relies on discrepancies or lacunae that, if
2 taken separately, concern matters collateral or ancillary to
3 the claim, . . . the cumulative effect may nevertheless be
4 deemed consequential by the fact-finder,” Tu Lin v. Gonzales,
5 446 F.3d 395, 402 (2d Cir. 2006) (internal citations and
6 quotation marks omitted). Substantial evidence supports the
7 agency’s determination that Torba was not credible.
8 First, Torba’s inconsistent testimony at the 2002 and
9 2013 hearings provides substantial evidence for the adverse
10 credibility determination. See Diallo, 548 F.3d at 234. The
11 IJ reasonably relied on his inconsistent statements regarding
12 whether he recognized the individuals who assaulted him in
13 February 1999 because it related to both an alleged act of
14 persecution and whether the perpetrators targeted him on
15 account of his political opinion. See Xian Tuan Ye v. Dep’t
16 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding
17 that “‘a material inconsistency in an aspect of [the
18 applicant]’s story that served as an example of the very
19 persecution from which he sought asylum’ . . . afforded
20 substantial evidence to support the adverse credibility
21 finding” (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d
22 Cir. 2005))). The IJ also reasonably relied on a more minor 4 1 inconsistency—whether Torba was the driver or passenger of a
2 car that was allegedly shot at by socialists in a later
3 incident—particularly as the incident was the one that
4 prompted him to leave Albania. See Tu Lin, 446 F.3d at 402.
5 The discrepancy regarding the time Torba spent in hiding at
6 his uncle’s house—for two to six months or a year and a half—
7 is substantial as it relates to whether he feared further
8 persecution. See Xian Tuan Ye, 446 F.3d at 295. And Torba’s
9 testimony was inconsistent with his written statement
10 regarding whether an altercation with the police occurred
11 during a funeral or a demonstration after a funeral. See Tu
12 Lin, 446 F.3d at 402. The agency was not required to accept
13 Torba’s explanation that the inconsistencies should be
14 excused because of the time that passed between hearings,
15 particularly given the centrality of some of the
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17-1752 Torba v. Barr BIA Wright, IJ A078 280 102 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 7th day of August, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 _____________________________________ 12 13 ERMAL TORBA, 14 Petitioner, 15 16 v. 17-1752 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jon E. Jessen, Stamford, CT. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Song Park, 27 Senior Litigation Counsel; 28 Victoria M. Braga, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, 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 Ermal Torba, a native and citizen of Albania,
6 seeks review of a May 4, 2017, decision of the BIA affirming
7 a March 2, 2016, decision of an Immigration Judge (“IJ”)
8 denying Torba’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Ermal Torba, No. A 078 280 102 (B.I.A. May 4,
11 2017), aff’g No. A 078 280 102 (Immig. Ct. N.Y. City Mar. 2,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as supplemented by
15 the BIA. See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.
16 2007). The standards of review are well established. See 8
17 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513
18 (2d Cir. 2009). Substantial evidence supports the agency’s
19 determination that Torba’s claim of past persecution based on
20 his political opinion was not credible. Nor did the agency
21 err in finding that Torba did not demonstrate a well-founded
22 fear of future persecution on account of a blood feud. 2 1 Adverse Credibility Determination
2 Torba filed for asylum before May 11, 2005, so his
3 application is not subject to the credibility provisions of
4 the REAL ID Act. See REAL ID Act of 2005, Div. B of Pub. L.
5 No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.
6 § 1158(b)(1)(B)(iii)); In re S-B-, 24 I. & N. Dec. 42, 45
7 (BIA 2006). “We review the IJ’s adverse credibility finding
8 under the substantial evidence standard, which requires that
9 the decision be supported by ‘reasonable, substantial and
10 probative evidence in the record.’” Diallo v. U.S. Dep’t of
11 Justice, 548 F.3d 232, 234 (2d Cir. 2008) (quoting Lin Zhong
12 v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir. 2007)).
13 Inconsistencies and other discrepancies in the evidence are
14 often sufficient to support an adverse credibility
15 determination, but they “need not necessarily be fatal . . .
16 if the disparities are relatively minor and isolated and do
17 not concern material facts,” and the testimony is otherwise
18 “generally consistent, rational, and believable.” Id.
19 (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
20 335 (2d Cir. 2006)). A discrepancy generally must be
21 substantial when measured against the record as a whole,
22 Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003), but 3 1 “even where an IJ relies on discrepancies or lacunae that, if
2 taken separately, concern matters collateral or ancillary to
3 the claim, . . . the cumulative effect may nevertheless be
4 deemed consequential by the fact-finder,” Tu Lin v. Gonzales,
5 446 F.3d 395, 402 (2d Cir. 2006) (internal citations and
6 quotation marks omitted). Substantial evidence supports the
7 agency’s determination that Torba was not credible.
8 First, Torba’s inconsistent testimony at the 2002 and
9 2013 hearings provides substantial evidence for the adverse
10 credibility determination. See Diallo, 548 F.3d at 234. The
11 IJ reasonably relied on his inconsistent statements regarding
12 whether he recognized the individuals who assaulted him in
13 February 1999 because it related to both an alleged act of
14 persecution and whether the perpetrators targeted him on
15 account of his political opinion. See Xian Tuan Ye v. Dep’t
16 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding
17 that “‘a material inconsistency in an aspect of [the
18 applicant]’s story that served as an example of the very
19 persecution from which he sought asylum’ . . . afforded
20 substantial evidence to support the adverse credibility
21 finding” (quoting Majidi v. Gonzales, 430 F.3d 77, 81 (2d
22 Cir. 2005))). The IJ also reasonably relied on a more minor 4 1 inconsistency—whether Torba was the driver or passenger of a
2 car that was allegedly shot at by socialists in a later
3 incident—particularly as the incident was the one that
4 prompted him to leave Albania. See Tu Lin, 446 F.3d at 402.
5 The discrepancy regarding the time Torba spent in hiding at
6 his uncle’s house—for two to six months or a year and a half—
7 is substantial as it relates to whether he feared further
8 persecution. See Xian Tuan Ye, 446 F.3d at 295. And Torba’s
9 testimony was inconsistent with his written statement
10 regarding whether an altercation with the police occurred
11 during a funeral or a demonstration after a funeral. See Tu
12 Lin, 446 F.3d at 402. The agency was not required to accept
13 Torba’s explanation that the inconsistencies should be
14 excused because of the time that passed between hearings,
15 particularly given the centrality of some of the
16 inconsistencies to the incidents of alleged persecution. See
17 Majidi, 430 F.3d at 80-81 (holding that an agency need not
18 credit an applicant’s explanations for inconsistent testimony
19 unless those explanations would compel a reasonable fact-
20 finder to do so).
21 Second, the adverse credibility determination is
22 bolstered by the IJ’s finding that Torba failed to 5 1 rehabilitate his testimony with reliable corroborating
2 evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
3 Cir. 2007) (“An applicant’s failure to corroborate his or
4 her testimony may bear on credibility, because the absence
5 of corroboration in general makes an applicant unable to
6 rehabilitate testimony that has already been called into
7 question.”). Torba has waived and failed to exhaust any
8 challenge to the corroboration finding. See Lin Zhong v.
9 U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
10 (requiring petitioner to exhaust issues before the BIA);
11 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
12 (“Issues not sufficiently argued in the briefs are
13 considered waived and normally will not be addressed on
14 appeal.”).
15 Well-Founded Fear of Future Persecution
16 The agency also did not err in finding that Torba did
17 not demonstrate that he would be harmed as a “young Torba
18 male” as a result of a blood feud. Absent past
19 persecution, an alien may establish eligibility for asylum
20 by demonstrating a well-founded fear of future persecution,
21 8 C.F.R. § 1208.13(b)(2), which must be both subjectively
6 1 credible and objectively reasonable, Ramsameachire v.
2 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
3 The agency reasonably concluded that Torba did not
4 demonstrate an objectively reasonable fear of future
5 persecution. See id. Torba did not report any direct
6 threats to himself and, although his father has been
7 threatened, he has not been harmed. See Melgar de Torres v.
8 Reno, 191 F.3d 307, 313 (2d Cir. 1999) (holding that a fear
9 of persecution is undermined when similarly-situated family
10 members remain unharmed in native country). Torba provided
11 no support for his claim that he is at an increased risk of
12 harm because of his long residence in the United States.
13 Furthermore, the agency reasonably gave diminished weight to
14 the alleged certification of the blood feud because the code
15 it references was not produced, it was signed by someone named
16 Torba, and the document’s 2011 date was handwritten over the
17 original date. See Y.C. v. Holder, 741 F.3d 324, 332, 334
18 (2d Cir. 2013) (“We generally defer to the agency’s evaluation
19 of the weight to be afforded an applicant’s documentary
20 evidence”). Accordingly, the agency reasonably concluded
21 that there was insufficient evidence that the Torba would be
22 singled out for harm as a result of this blood feud. 7 1 Because Torba was unable to establish past persecution
2 or well-founded fear of future persecution to make out an
3 asylum claim, he was necessarily unable to meet the higher
4 standard required to succeed on a claim for withholding of
5 removal and CAT protection. See Lecaj v. Holder, 616 F.3d
6 111, 119 (2d Cir. 2010).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court