Dakaj v. Gonzales
Dakaj v. Gonzales
Opinion of the Court
SUMMARY ORDER
Flamur Dakaj, a native and citizen of Albania, petitions for review of a July 2004 order of the Board of Immigration Appeals (“BIA”), summarily dismissing his appeal for failure to file a brief. In his brief on appeal, however, Dakaj challenges a May 2005 order of the BIA affirming an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts of this case, its procedural posture, and the decision below.
As an initial matter, this Court has jurisdiction to review only the BIA’s July 2004 order dismissing Dakaj’s appeal for failure to file a timely brief, from which Dakaj submitted a timely petition for review to this Court. See 8 U.S.C. § 1252(b). However, because the BIA’s July 2004 order was vacated by the BIA’s May 2005 order, Dakaj’s petition seeks relief from an order that has already been vacated, and, accordingly, the petition is moot. Moreover, this Court lacks jurisdiction to review the BIA’s May 2005 order because Dakaj failed to file a petition for review from that order. See Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).
However, even if Dakaj had filed in this Court a petition for review of the BIA’s May 2005 decision affirming the IJ’s denial of his asylum, withholding of removal and CAT claims, thus giving this Court jurisdiction to review that decision, the petition would be denied because the IJ’s adverse credibility finding was supported by substantial evidence. This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. U.S. Attorney, 400 F.3d 963, 964 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73-79; Ramsameachire v. Ashcroft, 357 F.3d 169, 178-83 (2d Cir. 2004); Secaida-Rosales v. INS, 331 F.3d 297, 306-13 (2d Cir. 2003); Diallo v. INS, 232 F.3d 279, 286-88 (2d Cir. 2000).
In this case, the IJ made an adverse credibility finding against Dakaj based on substantial evidence, and provided specific reasons for his adverse credibility finding, including that: (1) Dakaj had failed to testify to two significant events described in his asylum application — a January 1990 incident in which he had been beaten by police who were dissolving a protest, and had narrowly escaped arrest; and his participation in three demonstrations in early July 1997, during which he had claimed that the police had used tear gas and had arrested many people; (2) there were discrepancies between Da
For the foregoing reasons, the petition is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.