Elezovski v. Secretary of Department of Homeland Security
Elezovski v. Secretary of Department of Homeland Security
Opinion of the Court
SUMMARY ORDER
Lead Petitioner Zani Elezovski (“Elezovski”), on behalf of himself, his wife, and their two minor children (collectively, “petitioners”), all of whom are natives of the former Republic of Yugoslavia and citizens of Macedonia, petitions for review of an order of the BIA, affirming a decision of Immigration Judge (“IJ”) Michael W. Straus. The IJ rejected the petitioners’ application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts, the procedural history, and the issues on appeal.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir. 2004); Secaidctr-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). Where the BIA adopts the decision of the IJ and supplements the decision, as here, this Court reviews the decision of the IJ, as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir. 2005).
Applying these principles to this case, we are not confident that the IJ’s adverse credibility determination was supported by substantial evidence. While we recognize that the point at which an implausibility finding “ceases to be sustainable as reasonable and, instead, is justifiably labeled ‘speculation’ ... cannot be located with precision,” the IJ’s refusal to credit Elezovski’s testimony that he was an ethnic Albanian may amount to sheer speculation. Ming Xia Chen v. BIA 435 F.3d 141, 145 (2d Cir. 2006); see also Secaida-Rosales, 331 F.3d at 309-10 (holding implausibility findings to be based on flawed reasoning). And the record appears to be devoid of evidence to contradict Elezovski’s testimony that his family’s name was originally “Elez” and that it was customary for all individuals born in Macedonia, whether ethnic Albanian or otherwise, to add “ski” to the end of their names. Moreover, the reason the IJ deemed Elezovski’s testimony regarding the destruction of his father’s house to be inconsistent is not plain from the record.
To the extent that the petitioners seek to admit into evidence a more recent State Department Country Report, we decline to do so, because the report was not included in the record. See 8 U.S.C. § 1252(b)(4)(A) (limiting scope of review to “the administrative record on which the order of removal is based”); see also Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (noting well-established general rule that a court of appeals will not consider an issue raised for the first time on appeal). We also decline to remand the case to the BIA to consider the more recent report, because there is not a significant change in content or gap in time between it and the report which was considered by the BIA. Cf. Yang v. McElroy, 277 F.3d 158,163-64 (2d Cir . 2002).
Because substantial evidence supports the IJ’s determination, as supplemented by the BIA, that there was a fundamental change in country conditions, we affirm the denial of the petitioners’ asylum and withholding claims. Additionally, we deem the petitioners to have abandoned any challenge to the IJ’s denial of their claim for withholding of removal under the CAT and its implementing regulations, see 8 C.F.R. § 208.16(c) (2001), by failing to discuss this claim anywhere in their brief, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir. 2005) (citing Norton v. Sam’s Club, 145 F.3d 114,117 (2d Cir. 1998)).
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this proceeding is VACATED, and any pending motion for a stay of removal is DENIED as moot. Any pending request for oral argument is DENIED in accordance with Federal Rule
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