17-3529 Hysaj v. Barr BIA Poczter, IJ A208 752 131 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 29th day of October, two thousand nineteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 SUSAN L. CARNEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 EMANUEL HYSAJ, 14 Petitioner, 15 16 v. 17-3529 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Oleh R. Tustaniwsky, Esq., 24 Brooklyn, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Patricia E. Bruckner, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Emanuel Hysaj, a native and citizen of

6 Albania, seeks review of an October 12, 2017 decision of the

7 BIA affirming a December 5, 2016 decision of an Immigration

8 Judge (“IJ”) denying Hysaj’s application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Emanuel Hysaj, No. A 208 752

11 131 (B.I.A. Oct. 12, 2017), aff’g No. A 208 752 131 (Immig.

12 Ct. N.Y. City Dec. 5, 2016). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as supplemented by the BIA. See Yan Chen

17 v. Gonzales,

(2d Cir. 2005). We review the

18 agency’s factual findings for substantial evidence and its

19 legal conclusions de novo. See Niang v. Holder,

(2d Cir. 2014); see also Hong Fei Gao v. Sessions,

21

(2d Cir. 2018) (reviewing adverse credibility

22 determination under a substantial evidence standard).

2 1 Frivolous Finding

2 “A person who makes an application for asylum determined

3 to be ‘frivolous,’ or deliberately and materially false, is

4 subject to a grave penalty: permanent ineligibility for most

5 forms of relief under the immigration laws.” Mei Juan Zheng

6 v. Mukasey,

(2d Cir. 2008); see also 8

7

(d)(6) (“If the Attorney General determines that

8 an alien has knowingly made a frivolous application for asylum

9 and the alien has received the notice [of the consequences of

10 filing a frivolous application], the alien shall be

11 permanently ineligible for any benefits under this chapter,

12 effective as of the date of a final determination on such

13 application.”). Before being subject to this permanent bar,

14 Hysaj was entitled to procedural safeguards: “(1) notice . .

15 . of the consequences of filing a frivolous application; (2) a

16 specific finding . . . that [he] knowingly filed a frivolous

17 application; (3) sufficient evidence in the record to support

18 the finding that a material element of the asylum application

19 was deliberately fabricated; and (4) . . . sufficient

20 opportunity to account for any discrepancies or implausible

21 aspects of the claim.” In re Y-L-,

, 155

3 1 (BIA 2007). Hysaj disputes only that the third requirement

2 was met.

3 The record supports the agency’s conclusion that Hysaj

4 deliberately fabricated a material part of his claim.

5 Hysaj’s testimony was internally inconsistent regarding

6 whether he was frightened by June 2015 threatening phone call

7 or calls and whether as a result he took any steps to protect

8 himself or left the country, and he omitted from his written

9 statement and direct testimony that he left Albania for two

10 weeks in the summer of 2015 to try to come to the United

11 States. Although Hysaj argues that he never testified that

12 he remained in Albania during the relevant period, the agency

13 could reasonably expect that, when he was asked about his

14 activities in July 2015, Hysaj would disclose that he left

15 Albania for two weeks. See Hong Fei Gao, 891 F.3d at 78–79

16 (“[I]n assessing the probative value of the omission of

17 certain facts, an IJ should consider whether those facts are

18 ones that a credible petitioner would reasonably have been

19 expected to disclose under the relevant circumstances.”); see

20 also In re Y-L-,

(“[P]roof that conduct

21 was knowing or deliberate may be demonstrated by

22 circumstantial evidence.”). Furthermore, Hysaj gave

4 1 “dramatically different” accounts of what happened in June

2 and July 2015. Cf. Majidi v. Gonzales,

(2d

3 Cir. 2005) (determining that a petitioner’s “dramatically

4 different” accounts of an incident provides substantial

5 evidence for adverse credibility determination). Hysaj

6 changed his testimony from reporting that he was not

7 frightened by the June 2015 threat or threats and took no

8 steps to protect himself to stating that he was so frightened

9 by the call or calls that he left Albania and tried to come

10 to the United States. His admission that he fled Albania in

11 June 2015 also contradicts his written statement—that he and

12 his family concluded that he needed to leave for the United

13 States after he was assaulted in November 2015. These

14 conflicting versions of events support the agency’s

15 conclusion that he fabricated his claim of political

16 persecution. Cf. Majidi,

. Given these

17 contradictions, which implicated the harm he suffered and

18 feared and the extent of his political activities, the agency

19 did not err in finding that he fabricated a material aspect

20 of his asylum claim. See In re Y-L-,

.

21 Adverse Credibility Determination

5 1 The governing credibility standard under the REAL ID Act

2 is as follows:

3 Considering the totality of the circumstances, and 4 all relevant factors, a trier of fact may base a 5 credibility determination on . . . the consistency 6 between the applicant’s or witness’s written and 7 oral statements . . . , the internal consistency of 8 each such statement, the consistency of such 9 statements with other evidence of record . . . , and 10 any inaccuracies or falsehoods in such statements, 11 . . . or any other relevant factor. 12 13

(b)(1)(B)(iii). “We defer . . . to an IJ’s

14 credibility determination unless . . . it is plain that no

15 reasonable fact-finder could make such an adverse credibility

16 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

17 2008); accord Hong Fei Gao,

. Substantial

18 evidence supports the agency’s adverse credibility

19 determination.

20 First, as discussed above, there were inconsistencies in

21 Hysaj’s written and oral statements regarding whether he was

22 frightened by June 2015 threatening phone call or calls and

23 whether he took steps to protect himself or left the country

24 as a result. The IJ could reasonably expect that Hysaj would

25 disclose a previous attempt to escape persecution in his

26 asylum application and that he would mention that attempt

6 1 when asked about his activities during the period he was

2 outside Albania. See Hong Fei Gao, 891 F.3d at 78–79.

3 Second, additional findings bolster the adverse

4 credibility determination. Hysaj concedes that his testimony

5 was inconsistent regarding whether he reported the June 2015

6 threat or threats to the police and whether Democratic Party

7 leaders told him to contact the police. The agency was not

8 required to credit his correction to conform with his

9 application. See Majidi,

(“A petitioner must

10 do more than offer a plausible explanation for his

11 inconsistent statements to secure relief; he must demonstrate

12 that a reasonable fact-finder would be compelled to credit

13 his testimony.” (internal quotation marks omitted)).

14 Furthermore, whether Hysaj contacted the police regarding the

15 threats is significant because it implicates whether “the

16 government is unable or unwilling” to control his alleged

17 persecutors. See Pan v. Holder,

(2d Cir.

18 2015). The agency also reasonably relied on Hysaj’s omission

19 from his direct testimony that he was threatened with a knife

20 because he was asked twice about the problems he experienced

21 and only generally stated in response that he “had many

22 threats.” See Hong Fei Gao, 891 F.3d at 78–79.

7 1 Given these inconsistencies and omissions, substantial

2 evidence supports the agency’s adverse credibility

3 determination. See

(b)(1)(B)(iii); Xiu Xia

4 Lin,

. Because Hysaj’s claims were all based

5 on the same factual predicate, the adverse credibility

6 determination is dispositive of asylum, withholding of

7 removal, and CAT relief. See Paul v. Gonzales,

,

8 156-57 (2d Cir. 2006).

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

8