Zhabjaku v. Holder , 411 F. App'x 421 ( 2011 )

08-3112-ag
Zhabjaku v. Holder
BIA
Vomacka, IJ
A096 018 143
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of February,two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PETER W. HALL,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 GEZIM ZHABJAKU,
15 Petitioner,
16
17 v. 08-3112-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Theodore N. Cox, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Lyle D. Jentzer, Senior
28 Litigation Counsel; Zoe J. Heller,
29 Civil Division, Office of
30 Immigration Litigation, U.S.
31 Department of Justice, Washington
32 D.C.
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 DISMISSED in part and DENIED in part.
5 Petitioner Gezim Zhabjaku, a native and citizen of
6 Albania, seeks review of the June 11, 2008, decision of the
7 BIA denying his motion to reopen and the February 14, 2005,
8 decision of the BIA affirming the December 5, 2003, decision
9 of Immigration Judge (“IJ”) Alan A. Vomacka denying his
10 application for asylum, withholding of removal, and CAT
11 relief. In re Gezim Zhabjaku, No. A096 018 143 (B.I.A. June
12 11, 2008); In re Gezim Zhabjaku, No. A096 018 143 (B.I.A.
13 Feb. 14, 2005), aff’g No. A096 018 143 (Immig. Ct. N.Y.C.
14 Dec. 5, 2003). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 As an initial matter, Zhabjaku’s challenges to the
17 BIA’s denial of his motion to reopen based on his
18 eligibility to adjust status are moot because his
19 applications for adjustment of status and a waiver of
20 inadmissibility have been adjudicated and denied. His
21 petition for review is dismissed to that extent. See Church
22 of Scientology of Cal. v. United States, 506 U.S. 9, 12
2
1 (1992) (“[I]f an event occurs while a case is pending on
2 appeal that makes it impossible for the court to grant ‘any
3 effectual relief whatever’ to a prevailing party, the appeal
4 must be dismissed.”)
5 Under the circumstances of this case, we review the
6 IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice,
7 489 F.3d 517, 523 (2d Cir. 2007). The applicable standards
8 of review are well-established. See 8 U.S.C.
9 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
10 (2d Cir. 2009).
11 Substantial evidence supports the IJ’s adverse
12 credibility determination. The IJ reasonably relied on
13 several inconsistencies in the record that went to the heart
14 of Zhabjaku’s claim. See Majidi v. Gonzales, 430 F.3d 77,
15 79-81 (2d Cir. 2005). For example, at his airport and
16 credible fear interviews, Zhabjaku explicitly stated that he
17 had never been arrested, but at his merits hearing he
18 testified that he had been arrested and beaten several
19 times. See id.20 Further, Zhabjaku claimed in his asylum application
21 that he and his family were among the first members of the
22 Democratic Party in the early 1990s, but he testified that
3
1 he and his father did not join the Party until 1996. The
2 agency was not compelled to credit Zhabjaku’s explanation
3 that he was still relatively young at the time he joined the
4 Party; he did not explain why he did not join the youth wing
5 of the Party or why his father did not join earlier. In
6 addition, the IJ reasonably relied on the fact that Zhabjaku
7 stated in his asylum application that he supported Barit
8 Borici, the Legality Party candidate, in the 2000 municipal
9 elections, whereas Zhabjaku testified that he supported
10 Astrit Bushati, the Democratic Party candidate in that
11 election. The agency was not compelled to credit Zhabjaku’s
12 explanation that this was due to a typographical or
13 translation error. See Id. at 80-81.
14 In addition, the IJ reasonably found that Zhabjaku’s
15 failure to provide corroborating evidence supported an
16 adverse credibility determination. See Biao Yang v.
17 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Specifically,
18 the IJ reasonably noted the absence of any statement from
19 Zhabjaku’s family members (including his father, who was
20 supposedly involved in Democratic Party political
21 activities), and Zhabjaku’s failure to present any medical
22 records to corroborate his testimony that he received
23 medical treatment. See id.4
1 Zhabjaku argues that the IJ engaged in speculation in
2 making certain additional adverse credibility findings.
3 However, we can confidently predict that the IJ would have
4 reached the same decision in any event because of the
5 overwhelming inconsistencies in the record supporting the
6 IJ’s ultimate adverse credibility determination. See Diallo
7 v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d Cir.
8 2008). Because the agency’s adverse credibility
9 determination was supported by substantial evidence, it did
10 not err in relying on that determination to deny Zhabjaku’s
11 applications for asylum, withholding of removal, and CAT
12 relief, all of which claims were based on the same factual
13 predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d
14 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
15 520, 523 (2d Cir. 2005).
16 For the foregoing reasons, the petition for review is
17 DISMISSED in part and DENIED in part. As we have completed
18 our review, any stay of removal that the Court previously
19 granted in this petition is VACATED, and any pending motion
20 for a stay of removal in this petition is DISMISSED as moot.
21
22
5
1 Any pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate
3 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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