Rroku v. Holder , 560 F. App'x 101 ( 2014 )

11-4895 (L)
Rroku v. Holder
BIA
Abrams, IJ
A097 535 212
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 28th day of March, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 MARJAN RROKU, AKA JETON MIRAKAJ,
14 Petitioner,
15
16 v. 11-4895 (L),
17 12-3857 (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Cindy S. Ferrier,
28 Assistant Director; Lindsay M.
29 Murphy, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of these petitions for review of
2 decisions of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review under 11-4895 is DISMISSED in part and DENIED in
5 part, and the petition for review under 12-3857 is DENIED.
6 Marjan Rroku, a native and citizen of Albania, seeks
7 review of a November 18, 2011, decision of the BIA affirming
8 the July 19, 2011, decision of Immigration Judge (“IJ”)
9 Steven Abrams, which pretermitted his application for asylum
10 and denied his application for withholding of removal and
11 relief under the Convention Against Torture (“CAT”), and a
12 September 28, 2012, BIA decision denying his motion to
13 reopen. In re Marjan Rroku, No. A097 535 212 (B.I.A. Nov.
14 18, 2011), aff’g No. A097 535 212 (Immig. Ct. N.Y. City July
15 19, 2011); In re Marjan Rroku, No. A097 535 212 (B.I.A.
16 Sept. 28, 2012). We assume the parties’ familiarity with
17 the underlying facts and procedural history in this case.
18 I. Petition under 11-4895
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as modified and supplemented by the
21 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
22 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
2
1 522 (2d Cir. 2005). The applicable standards of review are
2 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
3 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
4 A. Asylum
5 As Rroku concedes, we lack jurisdiction to review the
6 pretermission of his asylum application unless he raises a
7 constitutional claim or question of law. See 8 U.S.C.
8 § 1252(a)(2)(C),(D). Rroku argues that the agency committed
9 an error or law in finding that the Government’s request for
10 documents from Albania did not breach the confidentiality of
11 the asylum application. This argument is frivolous.
12 A disclosure breaches confidentiality of an asylum
13 application if it allows a third party to link the identity
14 of the applicant to “facts or allegations that are
15 sufficient to give rise to a reasonable inference that the
16 applicant has applied for asylum.” Zhen Nan Lin v. U.S.
17 Dep’t of Justice, 459 F.3d 255, 263 (2d Cir. 2006) (internal
18 citation omitted). The IJ found that the Government’s
19 request did not “state or imply” that Rroku had applied for
20 asylum, and thus applied the correct standard. Moreover,
21 Rroku’s argument that the Government’s disclosure warrants
22 an automatic remand so that he can assert a new basis for
3
1 relief is unexhausted and we lack jurisdiction to consider
2 it. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d
3 113, 119 (2d Cir. 2006). Because Rroku fails to raise an
4 exhausted and colorable constitutional claim or question of
5 law, we lack jurisdiction to review the agency’s denial of
6 asylum. See 8 U.S.C. §§ 1158(a)(2)(B), (a)(3),
7 1252(a)(2)(D).
8 B. Withholding of Removal
9 For applications such as Rroku’s, governed by the
10 amendments made to the Immigration and Nationality Act by
11 the REAL ID Act of 2005, the agency may, “[c]onsidering the
12 totality of the circumstances,” base a credibility finding
13 on the applicant’s “demeanor, candor, or responsiveness,”
14 the plausibility of her account, and inconsistencies in her
15 statements, without regard to whether they go “to the heart
16 of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
17 1231(b)(3)(C); see also Xiu Xia Lin v. Mukasey, 534 F.3d
18 162, 167 (2d Cir. 2008). We “defer to an IJ’s credibility
19 determination unless, from the totality of the
20 circumstances, it is plain that no reasonable fact-finder
21 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
22
4
1 The IJ’s credibility finding is supported by Rroku’s
2 internally inconsistent testimony and by inconsistencies
3 between his testimony and the testimony of his witnesses.
4 See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia
5 Lin, 534 F.3d at 167.
6 The IJ was not required to credit Rroku’s explanation
7 that he lied to protect a friend. See Majidi v. Gonzales,
8 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that the agency
9 need not credit an applicant’s explanations for inconsistent
10 testimony unless those explanations would compel a
11 reasonable fact-finder to do so); Siewe v. Gonzales, 480
12 F.3d 160, 170 (2d Cir. 2007) (relying on the maxim to find
13 that once an IJ concludes that a document is false, he or
14 she is “free to deem suspect other documents (and to
15 disbelieve other testimony)”).
16 Furthermore, contrary to Rroku’s contention, the IJ did
17 consider the documents corroborating his employment with
18 SHIK (the Albanian intelligence agency) and his testimony
19 that a former colleague was politically opposed to both him
20 and his mentor. Having considered that evidence, the IJ
21 reasonably found that those documents did not corroborate
22 Rroku’s testimony that the former colleague and his
23 supporters had framed Rroku for murder. See Xiao Ji Chen v.
5
1 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
2 (noting that the weight to be accorded to documentary
3 evidence lies largely within the IJ’s discretion). Given
4 the discrepancies between Rroku’s testimony and that of
5 other witnesses, Rroku’s admission that he lied during his
6 testimony, and his conceded use of an alias to evade
7 immigration authorities, the adverse credibility
8 determination is supported by substantial evidence. See
9 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,
10 534 F.3d at 167. As the only evidence of a threat to
11 Rroku’s life or freedom depended upon his credibility, the
12 adverse credibility determination in this case necessarily
13 precludes success on his claim for withholding of removal.
14 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
15 C. CAT Relief
16 Contrary to Rroku’s argument that the IJ failed to
17 adequately consider his CAT claim, the IJ reasonably found
18 that he failed to establish a likelihood that he would be
19 tortured in Albania if he were removed. “Torture” does not
20 include “pain or suffering arising only from, inherent in or
21 incidental to lawful sanctions” unless the sanctions defeat
22 the object and purpose of the CAT. 8 C.F.R.
23 § 1208.18(a)(2). Poor prison conditions do not constitute
6
1 torture under the CAT “unless the deficits are extreme and
2 are inflicted intentionally rather than as a result of
3 poverty, neglect, or incompetence.” Pierre v. Gonzales, 502
4 F.3d 109, 121 (2d Cir. 2007). Although Rroku was convicted
5 in absentia and sentenced to life imprisonment, it was a
6 lawful sanction, as the IJ found, because Rroku submitted no
7 evidence that his sentence in absentia was invalid, and he
8 did not contend that the Albanian government would
9 intentionally subject him to extreme prison conditions. See
10 8 C.F.R. § 1208.18(a)(2)-(3); Pierre, 502 F.3d at 121.
11 The IJ also reasonably found that Rroku failed to
12 establish that he would be tortured by the family of the
13 murder victims because: (1) a member of that family
14 testified that there was no blood feud; (2) the victims’
15 family filed police reports rather then harm Rroku or his
16 family in Albania; and (3) the organization that certified
17 the blood feud issued the certification after the start of
18 the hearings and did not indicate that it had contacted the
19 family to confirm the feud. Furthermore, Rroku’s
20 documentary evidence reflects that the Albanian government
21 has implemented measures to prevent blood feud violence.
22 Therefore, as the IJ found, Rroku failed to demonstrate that
23 the Albanian government would be unwilling or unable to
7
1 protect him from torture. See Khouzam v. Ashcroft, 361 F.3d
2 161, 171 (2d Cir. 2004).
3 II. Petition under 12-3857
4 We also deny Rroku’s challenge to the BIA’s denial of
5 reopening, reviewing that denial for abuse of discretion.
6 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). A
7 motion to reopen must be based on new evidence that “would
8 likely change the result” of the proceedings if they were
9 reopened. Sanusi v. Gonzales, 445 F.3d 193, 201 (2d Cir.
10 2006) (citing In re Coelho, 20 I. & N. Dec. 464, 473 (BIA
11 1992)); see also 8 C.F.R. § 1003.2(c)(1).
12 Rroku was initially denied relief based on an adverse
13 credibility determination. Generally, the BIA may refuse to
14 credit uncorroborated and unauthenticated evidence submitted
15 with a motion to reopen because of an adverse credibility
16 determination in an underlying proceeding, regardless of
17 whether the basis for the finding was ancillary to the
18 applicant’s current claim. See Qin Wen Zheng v. Gonzales,
19 500 F.3d 143, 147-48 (2d Cir. 2007); see also Siewe, 480
20 F.3d at 170-71. On this basis, the BIA reasonably rejected
21 affidavits and photographs from Rroku’s relatives. See Qin
22 Wen Zheng, 500 F.3d at 147-48. Our decision in Paul v.
23 Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006), is not to the
8
1 contrary because the IJ here did not find any aspect of
2 Rroku’s testimony credible. See 444 F.3d at 154.
3 Rroku submitted a certificate validating the existence
4 of a blood feud as a basis for reopening. The IJ did not
5 err in rejecting it because Rroku could have obtained the
6 certificate at the time the issuing organization first
7 learned of the alleged feud, in May 2001. See 8 C.F.R.
8 § 1003.2(c)(1) (providing that a motion to reopen must be
9 supported by new, previously unavailable evidence).
10 Finally, there is some merit to Rroku’s argument about
11 the agency’s treatment of the Albanian news report of the
12 burning of his family’s home. News reports from reliable
13 sources, like State Department reports, may be considered
14 independent of an adverse credibility determination as
15 objective evidence of persecution. See Chhetry v. U.S.
16 Dep’t of Justice, 490 F.3d 196, 200 (2d Cir. 2007). The BIA
17 did not separately address the Albanian news report, and it
18 may thus have abused its discretion in rejecting it as
19 tainted by the adverse credibility determination. See Paul,
20 444 F.3d at 155-56. However, the report would not change
21 the outcome of Rroku’s proceedings because it only
22 speculated regarding arson committed by the Carnaj family,
23 and the reputation of the report’s source, the Albanian
9
1 network Lajme, was not established. See Chhetry, 490 F.3d
2 at 200; Xiao Ji Chen, 471 F.3d at 342; cf. Matter of M-Z-M-
3 R-, 26 I. & N. Dec. 28, 33 (BIA 2012) (accepting country
4 reports, Department of State bulletins, or reputable news
5 sources as credible evidence to establish possibility of a
6 refugee’s relocation within his or her country of origin).
7 Remand for consideration of the report alone would therefore
8 be futile. See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d
9 Cir. 2006).
10 We express no view as to the merits of the issues
11 raised by the parties in their letters dated February 15,
12 2014 and February 27, 2014, as those matters are not
13 properly before us.
14 For the foregoing reasons, the petition for review
15 under 11-4895 is DISMISSED in part and DENIED in part, and
16 the petition under 12-3857 is DENIED. Any pending request
17 for oral argument is DENIED in accordance with Federal Rule
18 of Appellate Procedure 34(a)(2), and Second Circuit Local
19 Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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