Pepushaj v. Mukasey
Pepushaj v. Mukasey
Opinion of the Court
SUMMARY ORDER
Petitioners, natives and citizens of Albania, seek review of a September 14, 2007 order of the BIA affirming the May 1, 2006 decision of Immigration Judge (“IJ”) Alan Page, which denied their application for asylum and denied Prel Pepushaj’s application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Prel Pepushaj, Shaqe Pepushaj, Nos. A97 391 278/279 (B.I.A. Sept. 14, 2007), aff'g Nos. A97 391 278/279 (Immig. Ct. N.Y. City May 1, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in all respects but one, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the ground for denying relief on which the BIA declined to rely. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Here, the BIA found that the IJ’s adverse credibility determination was not clearly erroneous but declined to reach the IJ’s alternate burden findings. Accordingly, we review the IJ’s adverse credibility determination as supplemented by the BIA, but not the IJ’s alternate burden findings. See id.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004). We review de novo questions of law and the application of law to undisputed fact. See Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007); Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir. 2006).
As an initial matter, although Petitioners are challenging the denial of relief in “asylum-only” proceedings, as opposed to an actual removal order, we nonetheless have jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of relief in these circumstances is the functional equivalent of a removal order. See Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir. 2006).
We conclude that the agency’s adverse credibility determination is supported by substantial evidence. The record supports the IJ’s identification of discrepancies between Prel Pepushaj’s testimony and other evidence in the record, including his asy
Finally, having appropriately concluded that Petitioners did not establish eligibility for asylum, the IJ properly determined that Pepushaj necessarily did not satisfy the higher burden of proof for his withholding of removal claim, which shared the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Because Petitioners failed to raise a CAT claim in them brief to this Court, we deem it abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir. 2005) (emphasizing that issues not sufficiently argued in the briefs are considered waived and ordinarily will not be addressed on appeal).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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