Gjuraj v. Garland ( 2023 )

20-3086
Gjuraj v. Garland
BIA
Douchy, IJ
A205 825 356
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 12th day of January, two thousand
twenty-three.
PRESENT:
WILLIAM J. NARDINI,
BETH ROBINSON,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
ORLAND GJURAJ,
Petitioner,
v. 20-3086
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gregory Marotta, Esq., Vernon, NJ.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
General; M. Jocelyn Lopez Wright, Senior
Litigation Counsel; Jacob A. Bashyrov, Trial
Attorney, Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Orland Gjuraj, a native and citizen of Albania, seeks review of an
August 31, 2020 decision of the BIA affirming a May 22, 2018 decision of an Immigration
Judge (“IJ”) denying Gjuraj’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Orland Gjuraj, No. A205 825 356
(B.I.A. Aug. 31, 2020), aff’g No. A205 825 356 (Immig. Ct. N.Y. City May 22, 2018). We
assume the parties’ familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review an adverse credibility determination
under a substantial evidence standard, Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
2018), and “the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
“Considering the totality of the circumstances, and all relevant factors, a trier of
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fact may base a credibility determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the circumstances
under which the statements were made), the internal inconsistency of each such
statement, the consistency of such statements with other evidence of record . . . and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’'s credibility
determination unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
Substantial evidence supports the adverse credibility determination in this case.
Gjuraj alleged past persecution on account of his and his family’s affiliation with the
Democratic Party of Albania. The agency did not err in discounting his claim based on
similarities between his application and applications filed by other asylum applicants.
When the appropriate procedural safeguards are followed, “inter-proceeding
similarities” are a valid basis for an adverse credibility finding. Mei Chai Ye v. U.S. Dep’t
of Justice, 489 F.3d 517, 520, 526 (2d Cir. 2007). The IJ complied with the BIA’s three-step
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process for ensuring that reliance on the similarities was fair.* See In re R-K-K-, 26 I. & N.
Dec. 658, 661 (B.I.A. 2015). First, the IJ gave meaningful notice—the government
questioned Gjuraj about the similarities and the IJ gave him 60 days to study the evidence
and respond. Second, the IJ gave him an opportunity to explain the similarities by filing
a written statement. Third, the IJ considered the totality of the circumstances by assessing
the similarities, Gjuraj’s explanations, and his documentary evidence.
We decline to grant review based on petitioner’s argument that the IJ erred in
admitting evidence of similar applications without a proper foundation. The Federal
Rules of Evidence do not apply in removal proceedings; rather, “evidence is admissible
provided that it does not violate the [undocumented immigrant’s] right to due process of
law.” Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008). Petitioner never raised this
argument before the IJ, which would have enabled the government to attempt to
authenticate the documents. During the hearing, petitioner did not question the
authenticity of the records of similar applications. See Certified Administrative Record
(“CAR”) 153–63. In his post-trial written closing arguments, petitioner did not challenge
* Gjuraj does not challenge the adequacy of the three-step framework adopted by the BIA to
evaluate credibility determinations relating to inter-proceeding similarities. See Mei Chai Ye, 489
F.3d at 524 (encouraging BIA to provide “expert guidance as to the most appropriate way to avoid
mistaken findings of falsity, and yet identify instances of fraud”); id. at 526 (noting that the Court’s
holding regarding inter-proceeding similarities does not preclude the BIA from “developing
more appropriate guidelines of its own”). Instead, he argues only that the BIA failed to properly
apply its framework. For that reason, we need not in this case rule on the adequacy of the BIA’s
three-step process for evaluating these claims.
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the admission of the similar applications, as opposed to the inferences the IJ drew from
those records, even though at the end of the hearing the IJ specifically suggested that
counsel address the admission of the other applications in his post-trial written closing
arguments. See CAR 185, 212-14. And petitioner now offers no basis to question the
authenticity of the records. On this record, we cannot conclude that admission of the
evidence was fundamentally unfair. Aslam, 537 F.3d at 114 (“[D]ue process is . . . satisfied
in immigration proceedings if the evidence is probative and its use is fundamentally
fair . . . .” (citation and quotation marks omitted)).
Moreover, we find no merit to Gjuraj’s argument that the use of the unrelated
asylum statements violated the confidentiality requirements in 8 C.F.R. § 208.6 because
the applications were redacted to prevent any link between the applications and specific
individuals. See Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 263–64 (2d Cir. 2006)
(discussing when confidentiality relating to asylum applications is breached).
The IJ was not required to accept Gjuraj’s explanations for the similarities,
especially given that the explanations were inconsistent as to whether Gjuraj or the
immigration consultant prepared his statement and they did not confirm the reliability
of Gjuraj’s own application. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation for his inconsistent statements
to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to
credit his testimony.” (citation and quotation marks omitted)).
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The IJ also reasonably concluded that Gjuraj’s documentary evidence did not
rehabilitate his claim. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
applicant’s failure to corroborate his or her testimony may bear on credibility, because
the absence of corroboration in general makes an applicant unable to rehabilitate
testimony that has already been called into question.”). As the IJ found, Gjuraj’s medical
report was similar to a report submitted in other proceedings and did not corroborate his
testimony regarding his injuries, and the death certificate for Gjuraj’s mother did not
match his testimony regarding her date of death or confirm that she was murdered.
Given the extensive similarities between Gjuraj’s application and the unrelated
asylum statements, his lack of compelling explanation for those similarities, and the lack
of reliable corroboration, substantial evidence supports the agency’s adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 167; Mei Chai Ye, 489 F.3d at 526. The adverse
credibility determination is dispositive because asylum, withholding of removal, and
CAT relief rest on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57
(2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions
and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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