20-3086 Gjuraj v. Garland BIA Douchy, IJ A205 825 356

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of January, two thousand twenty-three.

PRESENT: WILLIAM J. NARDINI, BETH ROBINSON, ALISON J. NATHAN, Circuit Judges. _____________________________________

ORLAND GJURAJ, Petitioner,

v. 20-3086 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Gregory Marotta, Esq., Vernon, NJ.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Jacob A. Bashyrov, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Orland Gjuraj, a native and citizen of Albania, seeks review of an

August 31, 2020 decision of the BIA affirming a May 22, 2018 decision of an Immigration

Judge (“IJ”) denying Gjuraj’s application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Orland Gjuraj, No. A205 825 356

(B.I.A. Aug. 31, 2020), aff’g No. A205 825 356 (Immig. Ct. N.Y. City May 22, 2018). We

assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v.

Gonzales,

(2d Cir. 2005). We review an adverse credibility determination

under a substantial evidence standard, Hong Fei Gao v. Sessions,

(2d Cir.

2018), and “the administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary,”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a trier of

2 fact may base a credibility determination on the demeanor, candor, or responsiveness of

the applicant or witness, the inherent plausibility of the applicant’s or witness’s account,

the consistency between the applicant’s or witness’s written and oral statements

(whenever made and whether or not under oath, and considering the circumstances

under which the statements were made), the internal inconsistency of each such

statement, the consistency of such statements with other evidence of record . . . and any

inaccuracies or falsehoods in such statements, without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any

other relevant factor.”

§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’'s credibility

determination unless, from the totality of the circumstances, it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

.

Substantial evidence supports the adverse credibility determination in this case.

Gjuraj alleged past persecution on account of his and his family’s affiliation with the

Democratic Party of Albania. The agency did not err in discounting his claim based on

similarities between his application and applications filed by other asylum applicants.

When the appropriate procedural safeguards are followed, “inter-proceeding

similarities” are a valid basis for an adverse credibility finding. Mei Chai Ye v. U.S. Dep’t

of Justice,

(2d Cir. 2007). The IJ complied with the BIA’s three-step

3 process for ensuring that reliance on the similarities was fair.* See In re R-K-K-,

(B.I.A. 2015). First, the IJ gave meaningful notice—the government

questioned Gjuraj about the similarities and the IJ gave him 60 days to study the evidence

and respond. Second, the IJ gave him an opportunity to explain the similarities by filing

a written statement. Third, the IJ considered the totality of the circumstances by assessing

the similarities, Gjuraj’s explanations, and his documentary evidence.

We decline to grant review based on petitioner’s argument that the IJ erred in

admitting evidence of similar applications without a proper foundation. The Federal

Rules of Evidence do not apply in removal proceedings; rather, “evidence is admissible

provided that it does not violate the [undocumented immigrant’s] right to due process of

law.” Aslam v. Mukasey,

(2d Cir. 2008). Petitioner never raised this

argument before the IJ, which would have enabled the government to attempt to

authenticate the documents. During the hearing, petitioner did not question the

authenticity of the records of similar applications. See Certified Administrative Record

(“CAR”) 153–63. In his post-trial written closing arguments, petitioner did not challenge

* Gjuraj does not challenge the adequacy of the three-step framework adopted by the BIA to evaluate credibility determinations relating to inter-proceeding similarities. See Mei Chai Ye,

(encouraging BIA to provide “expert guidance as to the most appropriate way to avoid mistaken findings of falsity, and yet identify instances of fraud”);

(noting that the Court’s holding regarding inter-proceeding similarities does not preclude the BIA from “developing more appropriate guidelines of its own”). Instead, he argues only that the BIA failed to properly apply its framework. For that reason, we need not in this case rule on the adequacy of the BIA’s three-step process for evaluating these claims.

4 the admission of the similar applications, as opposed to the inferences the IJ drew from

those records, even though at the end of the hearing the IJ specifically suggested that

counsel address the admission of the other applications in his post-trial written closing

arguments. See CAR 185, 212-14. And petitioner now offers no basis to question the

authenticity of the records. On this record, we cannot conclude that admission of the

evidence was fundamentally unfair. Aslam,

(“[D]ue process is . . . satisfied

in immigration proceedings if the evidence is probative and its use is fundamentally

fair . . . .” (citation and quotation marks omitted)).

Moreover, we find no merit to Gjuraj’s argument that the use of the unrelated

asylum statements violated the confidentiality requirements in

because

the applications were redacted to prevent any link between the applications and specific

individuals. See Zhen Nan Lin v. U.S. Dep’t of Justice,

, 263–64 (2d Cir. 2006)

(discussing when confidentiality relating to asylum applications is breached).

The IJ was not required to accept Gjuraj’s explanations for the similarities,

especially given that the explanations were inconsistent as to whether Gjuraj or the

immigration consultant prepared his statement and they did not confirm the reliability

of Gjuraj’s own application. See Majidi v. Gonzales,

(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.” (citation and quotation marks omitted)).

5 The IJ also reasonably concluded that Gjuraj’s documentary evidence did not

rehabilitate his claim. See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An

applicant’s failure to corroborate his or her testimony may bear on credibility, because

the absence of corroboration in general makes an applicant unable to rehabilitate

testimony that has already been called into question.”). As the IJ found, Gjuraj’s medical

report was similar to a report submitted in other proceedings and did not corroborate his

testimony regarding his injuries, and the death certificate for Gjuraj’s mother did not

match his testimony regarding her date of death or confirm that she was murdered.

Given the extensive similarities between Gjuraj’s application and the unrelated

asylum statements, his lack of compelling explanation for those similarities, and the lack

of reliable corroboration, substantial evidence supports the agency’s adverse credibility

determination. See Xiu Xia Lin,

; Mei Chai Ye,

. The adverse

credibility determination is dispositive because asylum, withholding of removal, and

CAT relief rest on the same factual predicate. See Paul v. Gonzales,

, 156–57

(2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending motions

and applications are DENIED and stays VACATED.

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

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