Kastrati v. Holder , 400 F. App'x 581 ( 2010 )

09-5203-ag
Kastrati v. Holder
BIA
Morace, IJ
A094 896 344
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of November, two thousand ten.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
ROBERT A. KATZMANN,
Circuit Judges.
______________________________________
BESART KASTRATI,
Petitioner,
09-5203-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Sokol Braha, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ada E. Bosque, Senior
Litigation Counsel; Puneet Cheema,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Besart Kastrati, a native and citizen of Kosovo, seeks
review of a December 2, 2009 decision of the BIA affirming
the February 15, 2008 decision of Immigration Judge (“IJ”)
Philip L. Morace denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Besart Kastrati, No. A094
896 344 (B.I.A. Dec. 2, 2009), aff’g No. A094 896 344
(Immig. Ct. N.Y. City Feb. 15, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
“Where, as here, the BIA agrees with the IJ’s
conclusion that a petitioner is not credible and, without
rejecting any of the IJ’s grounds for decision, emphasizes
particular aspects of that decision, we will review both the
BIA’s and IJ’s opinions – or more precisely, we review the
IJ’s decision including the portions not explicitly
discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d
391, 394 (2d Cir. 2005). Under the circumstances of this
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case, “we review the IJ’s factual findings, including
adverse credibility determinations, under the substantial
evidence standard, treating them as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.’” Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
2008) (quoting 8 U.S.C. § 1252(b)(4)(B)).
When evaluating credibility determinations for
substantial evidence, we afford “particular deference”
to the IJ. We must assess whether the IJ has provided
“specific, cogent reasons for the adverse credibility
finding and whether those reasons bear a legitimate
nexus to the finding.” “Where the IJ’s adverse
credibility finding is based on specific examples . . .
of inconsistent statements” or “contradictory
evidence,” a “reviewing court will generally not be
able to conclude that a reasonable adjudicator was
compelled to find otherwise.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
(citations omitted).
Here, the agency reasonably determined that Kastrati
did not credibly establish that he had a well-founded fear
of persecution upon return to Kosovo on account of his
political opinions. See 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(B)(ii); Yueqing Zhang v. Gonzales, 426 F.3d 540,
544-45 (2d Cir. 2005). We conclude that the agency’s
adverse credibility determination was supported by
substantial evidence given the inconsistencies between
Kastrati’s testimony at his merits hearing and his previous
3
statements, and given Kastrati’s failure to provide evidence
to corroborate his claims regarding the motivations behind
the bombing of his house.
In supporting its adverse credibility determination,
the agency reasonably relied on an inconsistency between, on
the one hand, Kastrati’s statement in his asylum application
that he took threats he received in December 2005 lightly,
and, on the other, his testimony at the merits hearing that
he reported these threats to the police and that these
threats were central to his fear of persecution. See 8
U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
at 167. The agency also reasonably relied on an
inconsistency between Kastrati’s statement during his
credible fear interview that, with respect to his
affiliation with the Democratic League of Kosovo (“LDK”), he
was not an activist, but rather only a sympathizer, and his
hearing testimony that he was in fact a political activist
engaged in a variety of political activities. See Ming
Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).
Furthermore, the agency did not err in relying in part
on the lack of corroboration for Kastrati’s claim that the
bombing of his house had a political motive and targeted him
specifically. See Biao Yang v. Gonzales, 496 F.3d 268, 273
4
(2d Cir. 2007) (holding that “[a]n 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”). The IJ attributed significance
to this lack of corroboration in light of, inter alia, the
existence of documentary evidence indicating that Kastrati’s
cousin was killed by a police officer because of a family or
personal feud rather than, as Kastrati claimed, because his
cousin supported the LDK. Although Kastrati argues that the
IJ erred in relying on Kastrati’s lack of knowledge of the
circumstances of his cousin’s death, the IJ did not base his
adverse credibility finding on this lack of knowledge.
Instead, the IJ reasonably considered the evidence
indicating that Kastrati’s cousin was killed for reasons
other than political ones as casting doubt upon Kastrati’s
related, uncorroborated claim regarding the bombing of his
house. See 8 U.S.C. § 1158(b)(1)(b)(ii); Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
Because the agency’s adverse credibility determination
is supported by substantial evidence and because Kastrati’s
claims depend on the testimony determined not to be
credible, the agency did not err in denying asylum or
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withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006). We decline to address the denial of
Kastrati’s CAT claim, as it was not sufficiently challenged
in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
541 n.1, 545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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