Marku v. Holder

U.S. Court of Appeals for the Second Circuit
Marku v. Holder, 509 F. App'x 14 (2d Cir. 2013)

Marku v. Holder

Opinion

SUMMARY ORDER

Petitioner Sokol Marku, a native and citizen of Albania, seeks review of an October 26, 2011, decision of the BIA affirming the July 20, 2009, decision of Immigration Judge (“IJ”) Thomas J. Mulligan denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Sokol Marku, No. A077 943 948 (B.I.A. Oct. 26, 2011), aff'g No. A077 943 948 (Immig.Ct.N.Y.C. July 20, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

For asylum applications, like Marku’s, governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in the witnesses’ statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

Substantial evidence supports the agency’s determination that Marku did not testify credibly regarding his claims. The IJ reasonably relied on inconsistencies in the record. See 8 U.S.C. § 1158(b)(l)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64, 166-67. As the agency noted, Marku’s hearing testimony that he did not fly to JFK airport in March 2000 was inconsistent with his subsequent affidavit, in which he conceded that he had done so. The agency reasonably declined to credit Mar-ku’s subsequent explanation that the inconsistency resulted because he did not consider the March 2000 arrival an “entry” into the United States, see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks omitted) (emphasis *16 in original)), particularly given that, at the hearing, the Government did not ask Mar-ku whether he had “entered” the United States in March 2000 but, rather, whether he had ever flown into JFK airport.

Further, as the agency noted, Marku’s statement in support of his asylum application did not include the allegation that he was allegedly beaten by his friends at his workplace once they discovered his sexual orientation, an allegation that he described in his testimony on the merits of his application. Similarly, Marku did not testify that he was strangled by a police officer in Albania — an allegation he included in his statement in support of his asylum application — until he was prompted to by questioning from his attorney. Although Mar-ku argues that these inconsistencies are not sufficient to form the basis of an adverse credibility determination, under the REAL ID Act, these inconsistencies provide substantial support for the agency’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii).

The adverse credibility determination is further supported by the IJ’s demeanor finding, to which we give particular deference. See Majidi, 430 F.3d at 81 n. 1; Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). Accordingly, the agency did not err in denying asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. As we have 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 DISMISSED 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 34.1(b).

Reference

Full Case Name
Sokol MARKU, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished