Marku v. Holder , 509 F. App'x 14 ( 2013 )

11-4898
Marku v. Holder
BIA
Mulligan, IJ
A077 943 948
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 29th day of January, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SOKOL MARKU,
14 Petitioner,
15
16 v. 11-4898
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joshua Bardavid; New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Paul Fiorino, Senior
27 Litigation Counsel; John M. McAdams,
28 Jr., Attorney, Office of Immigration
29 Litigation, United States Department of
30 Justice, Washington, 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 is
4 DENIED.
5 Petitioner Sokol Marku, a native and citizen of Albania,
6 seeks review of an October 26, 2011, decision of the BIA
7 affirming the July 20, 2009, decision of Immigration Judge
8 (“IJ”) Thomas J. Mulligan denying his application for asylum,
9 withholding of removal and relief under the Convention Against
10 Torture (“CAT”). In re Sokol Marku, No. A077 943 948 (B.I.A.
11 Oct. 26, 2011), aff’g No. A077 943 948 (Immig. Ct. N.Y.C. July
12 20, 2009). We assume the parties’ familiarity with the
13 underlying facts and procedural history of the case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
16 DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
19 162, 165-66 (2d Cir. 2008) (per curiam).
20 For asylum applications, like Marku’s, governed by the
21 REAL ID Act, the agency may, considering the totality of the
22 circumstances, base a credibility finding on an asylum
2
1 applicant’s demeanor, the plausibility of his account, and
2 inconsistencies in the witnesses’ statements, without regard
3 to whether they go “to the heart of the applicant’s claim.”
4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
5 64.
6 Substantial evidence supports the agency’s determination
7 that Marku did not testify credibly regarding his claims. The
8 IJ reasonably relied on inconsistencies in the record. See
9 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
10 at 163-64, 166-67. As the agency noted, Marku’s hearing
11 testimony that he did not fly to JFK airport in March 2000 was
12 inconsistent with his subsequent affidavit, in which he
13 conceded that he had done so. The agency reasonably declined
14 to credit Marku’s subsequent explanation that the
15 inconsistency resulted because he did not consider the March
16 2000 arrival an “entry” into the United States, see Majidi v.
17 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner
18 must do more than offer a plausible explanation for his
19 inconsistent statements to secure relief; he must demonstrate
20 that a reasonable fact-finder would be compelled to credit his
21 testimony.” (internal quotation marks omitted) (emphasis in
22 original)), particularly given that, at the hearing, the
3
1 Government did not ask Marku whether he had “entered” the
2 United States in March 2000 but, rather, whether he had ever
3 flown into JFK airport.
4 Further, as the agency noted, Marku’s statement in
5 support of his asylum application did not include the
6 allegation that he was allegedly beaten by his friends at his
7 workplace once they discovered his sexual orientation, an
8 allegation that he described in his testimony on the merits of
9 his application. Similarly, Marku did not testify that he was
10 strangled by a police officer in Albania – an allegation he
11 included in his statement in support of his asylum application
12 – until he was prompted to by questioning from his attorney.
13 Although Marku argues that these inconsistencies are not
14 sufficient to form the basis of an adverse credibility
15 determination, under the REAL ID Act, these inconsistencies
16 provide substantial support for the agency’s adverse
17 credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
18 The adverse credibility determination is further
19 supported by the IJ’s demeanor finding, to which we give
20 particular deference. See Majidi, 430 F.3d at 81 n.1; Zhou Yun
21 Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on
22 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
4
1 F.3d 296 (2d Cir. 2007). Accordingly, the agency did not err
2 in denying asylum, withholding of removal, and CAT relief.
3 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument in
9 this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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