Vukaj v. Immigration & Naturalization Service
Opinion of the Court
SUMMARY ORDER
Agostin Vukaj, a citizen of Albania, seeks review of an April 21, 2006 order of the BIA affirming the December 14, 2004 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying Vukaj’s claims for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In Re Agostin Vukaj, No. A 95 462.530 (B.I.A. Apr. 21, 2006), aff’g No. A 95 462 530 (Immig. Ct. N.Y. City Dec. 14, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding that an applicant failed to show either changed or extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, we retain jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Questions of law” include any issue traditionally reviewed by courts in habeas petitions challenging executive detentions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-27 (2d Cir. 2006). Here, we do not have jurisdiction to review the agency’s decision that Vukaj’s asylum application was untimely, because Vukaj’s argument to the contrary is “essentially a quarrel about factfinding.” Id. at 330. As such, we dismiss the petition for review as to Vukaj’s asylum claim.
Even though we lack jurisdiction over Vukaj’s asylum claim, we proceed to review the denial of his withholding of removal and CAT claims. See id. at 332 (stating that “eligibility for withholding of removal is not subject to 8 U.S.C. § 1158(a)(2)(B)’s one-year bar and, accordingly, must be considered by the BIA regardless of the timeliness of the initial asylum request”). Nevertheless, we deny the petition for review as to these claims, finding that the agency’s adverse credibility determination was supported by substantial evidence. The IJ identified several inconsistencies in the record in making his adverse credibility determination. The IJ noted that: (1) Vukaj testified to having joined the youth forum in June 1998 and the Democratic Party (“DP”) in June 2000, but his asylum application asserted that he joined the youth forum in July 1998 and the DP in July 2000; (2) Vukaj told the asylum officer that he joined the DP in July 2000, and not in June 2000, as he testified;
The BIA noted that none of the inconsistencies the IJ identified, on their own, would support an adverse credibility finding. However, the BIA affirmed the IJ’s adverse credibility determination because “the constellation of inconsistencies and contradictions described by the Immigration Judge lead us to agree that the respondent has not met his burden of proof to establish his eligibility of relief from removal.” The BIA’s conclusion was proper, because we have found that “even where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, ... the cumulative effect may nevertheless be deemed consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (internal quotation marks and citation omitted); see also Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-107 (2d Cir. 2006) (“[A]n IJ need not consider the centrality vel non of each individual discrepancy or omission” and can instead “rely upon the cumulative impact of such inconsistencies, and may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.” (internal quotation marks and citation omitted)).
Moreover, because the only evidence of a threat to Vukaj’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claim for relief under CAT. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. The stay of removal that the Court previously granted in this petition is VACATED.
. In making this finding, the IJ appears to have made a mistake when he said that Vukaj "indicated that he joined the DP and the youth forum in July of 1998 and 2000 respectively." The IJ should have stated that Vukaj claimed that he joined the youth forum in July 1998 and the DP in 2000. This error did not affect the IJ's conclusions, however, because the IJ was concerned not with whether Vukaj joined the DP before or after the youth forum, but with the month that he joined each of those organizations.
Reference
- Full Case Name
- Agostin VUKAJ v. IMMIGRATION AND NATURALIZATION SERVICE
- Status
- Published