Begu v. Lynch , 620 F. App'x 9 ( 2015 )

14-1294
Begu v. Lynch
BIA
Christensen, IJ
A079 437 356
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of June, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 RESHAT BEGU, AKA BEGU RASHAT,
14 Petitioner,
15
16 v. 14-1294
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Marotta, Vernon, New Jersey.
24
25 FOR RESPONDENT: Joyce R. Branda, Assistant Attorney
26 General; Carl McIntyre, Assistant
27 Director; Margaret A. O’Donnell,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Reshat Begu, a native and citizen of Albania,
11 seeks review of an April 9, 2014, decision of the BIA affirming
12 an April 5, 2012, decision of an Immigration Judge (“IJ”)
13 denying Begu’s application for asylum, withholding of removal,
14 and relief under the Convention Against Torture (“CAT”). In
15 re Reshat Begu, No. A079 437 356 (B.I.A. Apr. 9, 2014), aff’g
16 No. A079 437 356 (Immig. Ct. N.Y. City Apr. 5, 2012). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed the
20 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
21 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
22 applicable standards of review are well-established. See 8
23 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
2
1 513 (2d Cir. 2009). Because Begu first applied for asylum prior
2 to May 11, 2005, the amendments made to the Immigration and
3 Nationality Act by the REAL ID Act of 2005 do not apply.
4 We review the agency’s factual findings, including adverse
5 credibility findings, under the substantial evidence standard,
6 treating them as “conclusive unless any reasonable adjudicator
7 would be compelled to conclude to the contrary.” 8 U.S.C.
8 § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588 F.3d 90,
9 93-94 (2d Cir. 2009). Inconsistencies and other discrepancies
10 in the evidence are often sufficient to support an adverse
11 credibility determination, but they need not be fatal if they
12 are minor and isolated, and the testimony is otherwise generally
13 consistent, rational, and believable. Diallo v. BIA, 548 F.3d
14 232, 234 (2d Cir. 2008) (citing Xiao Ji Chen v. U.S. Dep’t of
15 Justice, 471 F.3d 315, 335 (2d Cir. 2006)). To form the basis
16 of an adverse credibility determination, a discrepancy must be
17 “substantial” when measured against the record as a whole.
18 Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005). However,
19 “even where an IJ relies on discrepancies or lacunae that, if
20 taken separately, concern matters collateral or ancillary to
3
1 the claim, . . . the cumulative effect may nevertheless be deemed
2 consequential by the fact-finder.” Tu Lin v. Gonzales, 446
3 F.3d 395, 402 (2d Cir. 2006) (citations omitted). The agency
4 need not credit an applicant’s explanations for inconsistent
5 testimony unless they would compel a reasonable fact-finder to
6 do so. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
7 The agency reasonably found Begu’s airport interview
8 inconsistent with his asylum application and testimony.
9 During the airport interview, Begu did not make any claims based
10 on political persecution, while his application provided a
11 detailed account of the times he was arrested, detained, and
12 beaten by the police for his membership in the Democratic Party.
13 Begu stated during the interview that he feared returning to
14 Albania because he borrowed money from family and friends who
15 might kill him if he did not pay them back; he conceded during
16 the merits hearing that this statement was false. The IJ
17 reasonably rejected Begu’s explanation that he was afraid to
18 reveal his involvement in politics to the officer at the
19 airport. Majidi, 430 F.3d at 80-81.
4
1 The agency also reasonably found Begu’s testimony and
2 affidavit inconsistent with the notes from his credible fear
3 interview. Begu argues that the interview notes were
4 unreliable because at the time the interview was conducted, he
5 was still in immigration custody. However, the credible fear
6 interview record bears significant indicia of reliability.
7 See Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004);
8 see also Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d Cir.
9 2009). The interview was recorded in the form of a transcript
10 that clearly provided the questions asked and answers given,
11 and did not merely “summarize” Begu’s statements; the officer
12 asked Begu several questions that were clearly designed to
13 elicit an asylum claim; and Begu answered questions clearly and
14 included several details about his political affiliation.
15 Finally, nothing in the interview record suggested a
16 translation problem: Begu confirmed during the interview that
17 he understood the interpreter, and continued to provide clear
18 answers to the questions asked. Accordingly, the agency did
19 not err in relying on the credible fear interview. See Ming
20 Zhang, 585 F.3d at 725. And, considering Begu’s credible fear
5
1 interview, affidavit, and testimony, he was inconsistent as to
2 whether and how many times he was detained, when the police beat
3 him, and whether he owed money to people in Albania.
4 Moreover, the IJ reasonably found that Begu’s
5 corroborating evidence was insufficient to rehabilitate his
6 inconsistent testimony, affording limited weight to the medical
7 document and letters he submitted because their authors were
8 unavailable for cross-examination. See Zhi Yun Gao v. Mukasey,
9 508 F.3d 86, 87 (2d Cir. 2007); Xiao Ji Chen, 471 F.3d at 337
10 n.17, 342.
11 Given the inconsistencies between Begu’s testimony,
12 affidavit, and record evidence, substantial evidence supports
13 the agency’s adverse credibility determination, which provided
14 an adequate basis for denying Begu asylum, withholding of
15 removal, and CAT relief. See 8 U.S.C. § 1158(b)(1)(B)(iii);
16 Xiu Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444
17 F.3d 148, 155-57 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
6
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
7