09-1335-ag

Markaj v. Holder

BIA

Straus, IJ

A094 802 825

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 19th 4 day of October, two thousand ten.

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 JOSÉ A. CABRANES,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _______________________________________

12

13 VIKTOR MARKAJ,

14 Petitioner,

15

16 v. 09-1335-ag

17 NAC

18 ERIC H. HOLDER, JR., U.S. ATTORNEY 

19 GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Fatos Koleci, Milford, Connecticut.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Daniel E. Goldman, Senior

27 Litigation Counsel; Eric W.

28 Marsteller, Trial Attorney, Office

29 of Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Petitioner Viktor Markaj, a native and citizen of

6 Serbia, seeks review of a March 2, 2009, order of the BIA

7 affirming the April 26, 2007, decision of Immigration Judge

8 (“IJ”) Michael W. Straus, denying his application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Viktor Markaj,

11 No. A094 802 825 (B.I.A. Mar. 2, 2009), aff’g No. A094 802

12 825 (Immig. Ct. Hartford Apr. 26, 2007). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of the case. 

15 Under the circumstances of this case, we review both

16 the IJ’s and the BIA’s opinions. See Yun-Zui Guan v.

17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

18 standards of review are well-established. See 8 U.S.C.

19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20 66 (2d Cir. 2008). 

21 Substantial evidence supports the IJ’s adverse

22 credibility determination. As the IJ found, Markaj omitted
3

1 during his credible fear interview and from his asylum

2 application his claim raised at his hearing that he was

3 harmed because he was a member of the Democratic League of

4 Kosovo (“LDK”), stating instead that the harm he suffered

5 was based on his engagement to a Serbian woman and his

6 refusal to join the Kosovo Liberation Army during the 1999

7 war. Markaj’s omission of his LDK membership as a basis for

8 his claim of past persecution and well-founded fear of

9 future persecution was sufficiently dramatic to undermine

10 his credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); see

11 also Xiu Xia Lin, 534 F.3d at 166-67 n.3 (noting that

12 inconsistencies and omissions are “functionally

13 equivalent”). Furthermore, the IJ reasonably declined to

14 credit Markaj’s explanation that his answers at his credible

15 fear interview had to be brief because he was repeatedly

16 asked at that interview about the basis for his fear of

17 persecution. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

18 Cir. 2005) (emphasizing that the agency need not credit an

19 applicant’s explanations for inconsistent testimony unless

20 those explanations would compel a reasonable fact-finder to

21 do so). Moreover, Markaj’s argument failed to explain the

22 omission of this claim from his asylum application.
4

1 Because the IJ reasonably found Markaj not credible,

2 the IJ did not err in relying on the absence of country

3 conditions evidence corroborating his claim that he was

4 targeted as an LDK member. See Biao Yang v. Gonzales, 496

5 F.3d 268, 273 (2d Cir. 2007). Furthermore, contrary to

6 Markaj’s argument, the IJ reasonably gave diminished weight

7 to his individualized corroborating evidence, including both

8 a medical letter and his identity documents. See Xiao Ji

9 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

10 2006) (finding that the weight afforded to the applicant’s

11 evidence in immigration proceedings lies largely within the

12 discretion of the agency).

13 Accordingly, considering the totality of the

14 circumstances and all relevant factors, the IJ’s adverse

15 credibility determination was supported by substantial

16 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). Because the

17 IJ reasonably concluded that Markaj was not credible as to

18 his claims of past persecution and a well-founded fear of

19 future persecution, the adverse credibility determination in

20 this case necessarily precludes success on his claim for

21 asylum, withholding of removal, and CAT relief, as those

22 claims were based on the same factual predicate. See Paul

23 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
5

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

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