18-3406 Smajlaj v. Garland BIA Poctzer, IJ A208 752 127/128 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 10th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 ROSEMARY S. POOLER, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 ALTIN SMAJLAJ, LUIZA SMAJLAJ, 14 Petitioner, 15 16 v. 18-3406 17 NAC 18 MERRICK B. GARLAND 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo 24 & Masi, PC, Bohemia, NY.

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 2 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 3 General; Shelley R. Goad, 4 Assistant Director; Jennifer A. 5 Singer, Trial Attorney, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioners Altin Smajlaj and Luiza Smajlaj, natives and

14 citizens of Albania, seek review of an October 16, 2018

15 decision of the BIA affirming a July 19, 2017 decision of an

16 Immigration Judge (“IJ”) denying Smajlaj’s application for

17 asylum, withholding of removal, and relief under the

18 Convention Against Torture (“CAT”). In re Altin Smajlaj, No.

19 A 208 752 127/128 (B.I.A. Oct. 16, 2018), aff’g No. A 208 752

20 127/128 (Immig. Ct. N.Y. City July 19, 2017). We assume the

21 parties’ familiarity with the underlying facts and procedural

22 history.

23 We have considered both the IJ’s and the BIA’s opinions

24 “for the sake of completeness.” Wangchuck v. Dep’t of

25 Homeland Security,

(2d Cir. 2006). The

2 1 standards of review are well established. See 8 U.S.C.

2 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

3 (2d Cir. 2018). “Considering the totality of the

4 circumstances, and all relevant factors, a trier of fact may

5 base a credibility determination on the demeanor, candor, or

6 responsiveness of the applicant . . . , the consistency

7 between the applicant’s or witness’s written and oral

8 statements . . . , the internal consistency of each such

9 statement, the consistency of such statements with other

10 evidence of record . . . without regard to whether an

11 inconsistency, inaccuracy, or falsehood goes to the heart of

12 the applicant’s claim, or any other relevant factor.”

13

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

14 credibility determination unless, from the totality of the

15 circumstances, it is plain that no reasonable fact-finder

16 could make such an adverse credibility ruling.” Xiu Xia Lin

17 v. Mukasey,

(2d Cir. 2008); accord Hong Fei

18 Gao,

.

19 Applying these standards, we conclude that substantial

20 evidence supports the adverse credibility determination. 2

2The adverse credibility determination is dispositive and we find no need to distinguish between Altin’s and Luiza’s status as 3 1 First, the agency reasonably relied on omissions from Altin’s

2 and Luiza’s statements at their initial credible fear

3 interviews. The records of the interviews were sufficiently

4 reliable. See Ming Zhang v. Holder,

(2d

5 Cir. 2009); Ramsameachire v. Ashcroft,

, 179–80

6 (2d Cir. 2004). Both Altin and Luiza failed to mention at

7 the interviews that the individual they feared was a police

8 officer despite the asylum officer’s questions about their

9 fear of public officials and ability to seek help from the

10 Albanian police. Neither provided a compelling explanation

11 when confronted with the inconsistency. See Majidi v.

12 Gonzales,

(2d Cir. 2005) (“A petitioner must

13 do more than offer a plausible explanation for his

14 inconsistent statements to secure relief; he must demonstrate

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

16 his testimony.” (internal quotations omitted)).

17 Next, the agency reasonably relied on the cumulative

18 effect of several inconsistencies between Altin’s and Luiza’s

19 testimony. See Liang Chen v. U.S. Att’y Gen.,

,

20 106–07 (2d Cir. 2006). For example, Altin and Luiza did not

applicant and derivative beneficiary. 4 1 testify consistently as to whether they received threats in

2 person or only by mail. They also provided inconsistent

3 testimony as to the trigger for their departure from their

4 home: Altin described their pursuer’s brother’s release from

5 jail as a motivating factor, while Luiza stated that she was

6 not sure if any of their pursuer’s family was incarcerated.

7 Finally, the absence of reliable documentary evidence

8 undermined the Smajlajs’ credibility. See Biao Yang v.

9 Gonzales,

(2d Cir. 2007) (“An applicant’s

10 failure to corroborate his or her testimony may bear on

11 credibility, because the absence of corroboration in general

12 makes an applicant unable to rehabilitate testimony that has

13 already been called into question.”); see also Y.C. v. Holder,

14

(2d Cir. 2013) (deferring to agency on

15 weight of documentary evidence and upholding BIA’s decision

16 not to credit letter from applicant’s spouse). While the

17 Smajlajs’ provided letters from village priest, the village

18 elder, and a friend, none of these letters addressed the

19 omissions and inconsistencies in the Smajlajs’ testimony.

20 The omissions, inconsistencies, and lack of reliable

21 corroboration provide substantial evidence in support of the

5 1 adverse credibility determination. See Xiu Xia Lin,

. That determination is dispositive of the Smajlajs’

3 claims for asylum, withholding of removal, and CAT relief

4 because all three claims are based on the same factual

5 predicate. See Paul v. Gonzales,

(2d

6 Cir. 2006).

7 Finally, we find no abuse of discretion in the BIA’s

8 denial of the motion to remand. To warrant remand based on

9 ineffective assistance of counsel, an applicant must show

10 that counsel’s actions were deficient and caused

11 prejudice. See Debeatham v. Holder,

(2d

12 Cir. 2010). As the BIA explained, the alleged deficiencies

13 were not material to the adverse credibility determination

14 and thus did not affect the outcome of the proceedings.

15 at 486.

16 For the foregoing reasons, the petition for review is

17 DENIED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court

6