Lajqi v. Holder , 595 F. App'x 46 ( 2014 )

13-4441
Lajqi v. Holder
BIA
Burr, IJ
A096 415 135
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 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 19th day of December, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 ENVER LAJQI, AKA PRIMOZ SKALAR,
14 AKA GREGOR GODLER,
15 Petitioner,
16
17 v. 13-4441
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Peter D. Lobel, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Paul Fiorino, Senior
28 Litigation Counsel; Judith R.
29 O’Sullivan, Trial Attorney, Office
1 of Immigration Litigation, U.S.
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Enver Lajqi, a native of the former Yugoslavia and
10 citizen of Kosovo, seeks review of an October 29, 2013
11 decision of the BIA, affirming the November 3, 2011 decision
12 of an Immigration Judge (“IJ”), denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Enver Lajqi, No.
15 A096 415 135 (B.I.A. Oct. 29, 2013), aff’g A096 415 135
16 (Immig. Ct. N.Y. City Nov. 3, 2011). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we have reviewed
20 the decisions of both the IJ and the BIA. Yun-Zui Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
22 The applicable standards of review are well established.
23 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
24 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). The agency
25 may, “[c]onsidering the totality of the circumstances,” base
2
1 a credibility finding on an asylum applicant’s demeanor, and
2 inconsistencies in his statements and other record evidence
3 “without regard to whether” they go “to the heart of the
4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 163-64.
6 Because Lajqi does not raise a challenge to the
7 pretermission of his asylum application as untimely, he has
8 waived that issue and we decline to consider it. See
9 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
10 (2d Cir. 2005). Accordingly, we consider only the agency’s
11 adverse credibility determination as it applies to
12 withholding of removal and CAT relief.
13 Substantial evidence supports that determination, as it
14 is properly based on inconsistencies between Lajqi’s airport
15 interview, and his asylum application and hearing testimony,
16 which go directly to the basis of his claim for political
17 persecution. Lajqi argues that his airport interview was
18 unreliable. Where discrepancies arise from an applicant’s
19 statement in an airport interview, we examine the record of
20 the interview to ensure that it represents a “sufficiently
21 accurate record” of the applicant’s statements to merit
22 consideration in determining whether the applicant is
23 credible. Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d
24 Cir. 2004).
3
1 Here, the agency reasonably found that the record of
2 Lajqi’s airport interview was sufficiently reliable.
3 Although not appearing to be a verbatim transcript, the
4 interview bears the hallmarks of accuracy and reliability,
5 including Lajqi’s signed affirmation of its truthfulness.
6 The questions posed were designed to elicit the details of
7 an asylum claim, e.g., “[d]o you have a fear or concern for
8 your life, if you were removed from the United States?”
9 There was no indication at the interview that Lajqi was
10 reluctant to answer questions. Lastly, Lajqi was provided
11 an interpreter. The record of the interview does not state
12 the language in which the interview took place, but reflects
13 that Lajqi confirmed he understood the immigration officer,
14 gave coherent answers, and otherwise did not indicate any
15 inability to understand.
16 Because the airport interview has sufficient indicia of
17 reliability, the agency reasonably based its adverse
18 credibility finding on Lajqi’s failure to mention his
19 alleged persecution. The agency was not required to credit
20 Lajqi’s explanation for this omission, which was that he was
21 nervous. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
22 Cir. 2005) (holding that the agency need not credit an
4
1 explanation for inconsistent testimony unless the
2 explanation would compel a reasonable fact-finder to do so).
3 The agency also reasonably disbelieved Lajqi’s
4 testimony that he did not know, at the time of the
5 interview, that he could apply for political asylum. He was
6 aware at that time that his sister had received asylum in
7 the United States. Because the IJ’s inference of
8 implausibility was “tethered to the evidentiary record,” we
9 defer to that finding. Siewe v. Gonzales, 480 F.3d 160, 169
10 (2d Cir. 2007). Ultimately, substantial evidence supports
11 the agency’s adverse credibility determination because
12 Lajqi’s statements in 2004 contradict his asylum
13 application, which was based on allegations of persecution
14 predating the 2004 interview. Because Lajqi’s claim relied
15 on his credibility, this determination precludes both
16 withholding of removal and CAT relief as the claims are
17 based on the same factual predicate. Paul v. Gonzales, 444
18 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep't of
19 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
23 is VACATED, and any pending motion for a stay of removal in
5
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9
6