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. CI** **TATION 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 19 th** **day of October, two thousand ten.** 4 5 **PRESENT:** 6 **JOSEPH M. McLAUGHLIN,** 7 **JOSÉ A. CABRANES,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **VIKTOR MARKAJ,** 13 Petitioner**,** 14 15 **v. 09-1335-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 18 **GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Fatos Koleci, Milford, Connecticut.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Daniel E. Goldman, Senior** 26 **Litigation Counsel; Eric W.** 27 **Marsteller, Trial Attorney, Office** 28 **of Immigration Litigation, Civil** 29 **Division, United States Department** 30 **of Justice, Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is DENIED. 4 Petitioner Viktor Markaj, a native and citizen of 5 Serbia, seeks review of a March 2, 2009, order of the BIA 6 affirming the April 26, 2007, decision of Immigration Judge 7 (“IJ”) Michael W. Straus, denying his application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Viktor Markaj , 10 No. A094 802 825 (B.I.A. Mar. 2, 2009), aff’g No. A094 802 11 825 (Immig. Ct. Hartford Apr. 26, 2007). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history of the case. 14 Under the circumstances of this case , we review both 15 the IJ’s and the BIA’s opinions. See Yun-Zui Guan v. 16 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The applicable 17 standards of review are well-established. See8 U.S.C. 18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 19 66 (2d Cir. 2008). 20 Substantial evidence supports the IJ’s adverse 21 credibility determination. As the IJ found, Markaj omitted 223 during his credible fear interview and from his asylum 1 application his claim raised at his hearing that he was 2 harmed because he was a member of the Democratic League of 3 Kosovo (“LDK”), stating instead that the harm he suffered 4 was based on his engagement to a Serbian woman and his 5 refusal to join the Kosovo Liberation Army during the 1999 6 war. Markaj’s omission of his LDK membership as a basis for 7 his claim of past persecution and well-founded fear of 8 future persecution was sufficiently dramatic to undermine 9 his credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); see 10 also Xiu Xia Lin , 534 F.3d at 166-67 n.3 (noting that 11 inconsistencies and omissions are “functionally 12 equivalent”). Furthermore, the IJ reasonably declined to 13 credit Markaj’s explanation that his answers at his credible 14 fear interview had to be brief because he was repeatedly 15 asked at that interview about the basis for his fear of 16 persecution. See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d 17 Cir. 2005) (emphasizing that the agency need not credit an 18 applicant’s explanations for inconsistent testimony unless 19 those explanations would compel a reasonable fact-finder to 20 do so). Moreover, Markaj’s argument failed to explain the 21 omission of this claim from his asylum application. 224 Because the IJ reasonably found Markaj not credible, 1 the IJ did not err in relying on the absence of country 2 conditions evidence corroborating his claim that he was 3 targeted as an LDK member. See Biao Yang v. Gonzales , 496 4 F.3d 268, 273 (2d Cir. 2007). Furthermore, contrary to 5 Markaj’s argument, the IJ reasonably gave diminished weight 6 to his individualized corroborating evidence, including both 7 a medical letter and his identity documents. See Xiao Ji 8 Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 9 2006) (finding that the weight afforded to the applicant’s 10 evidence in immigration proceedings lies largely within the 11 discretion of the agency). 12 Accordingly, considering the totality of the 13 circumstances and all relevant factors, the IJ’s adverse 14 credibility determination was supported by substantial 15 evidence. See8 U.S.C. § 1158(b)(1)(B)(iii). Because the 16 IJ reasonably concluded that Markaj was not credible as to 17 his claims of past persecution and a well-founded fear of 18 future persecution, the adverse credibility determination in 19 this case necessarily precludes success on his claim for 20 asylum, withholding of removal, and CAT relief, as those 21 claims were based on the same factual predicate. See Paul 22 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 235 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13 14