17-3690 

Pepaj v. Barr 

BIA 

Christensen, IJ 

A206 140 284 

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 United 

3 States Courthouse, 40 Foley Square, in the City of New York, 

on the 16th 4 day of December, two thousand nineteen. 

5 

6 PRESENT: 

7 PIERRE N. LEVAL,

8 REENA RAGGI, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 MIKEL PEPAJ, 

14 Petitioner, 

15 

16 v. 17-3690 

17 NAC 

18 WILLIAM P. BARR, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Michael P. DiRaimondo, Melville, 

24 NY. 

25 

26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

27 Attorney General; Shelley R. Goad, 

28 Assistant Director; Carmel A. 

29 Morgan, Trial Attorney, Office of 

30 Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC. 
2

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 Mikel Pepaj, a native and citizen of Albania, 

6 seeks review of the BIA’s affirmance of an Immigration Judge’s 

7 (“IJ”) denial of Pepaj’s application for asylum, withholding 

8 of removal, and relief under the Convention Against Torture 

9 (“CAT”). In re Mikel Pepaj, No. A 206 140 284 (B.I.A. Oct. 

10 16, 2017), aff’g No. A 206 140 284 (Immig. Ct. N.Y. City Feb. 

11 7, 2017). 

12 Under the circumstances, we have reviewed the IJ’s 

13 decision as modified by the BIA. See Xue Hong Yang v. U.S. 

14 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying 

15 well established standards of review. See 8 U.S.C. 

16 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 

17 (2d Cir. 2018). In so doing, we assume the parties’ 

18 familiarity with the underlying facts and procedural history 

19 of this case, which we reference only as necessary to explain 

20 our decision to deny the petition. 

21 “[A] trier of fact may base a credibility determination 

22 on the demeanor, candor, or responsiveness of the applicant 
3

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

2 witness’s account, [and] the consistency between the 

3 applicant’s or witness’s written and oral statements . . . 

4 without regard to whether an inconsistency, inaccuracy, or 

5 falsehood goes to the heart of the applicant’s 

6 claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

7 defer . . . to an IJ’s credibility determination unless, from 

8 the totality of the circumstances, it is plain that no 

9 reasonable fact-finder could make such an adverse credibility 

10 ruling.” Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008); 

11 accord Hong Fei Gao, 891 F.3d at 76. Applying these 

12 standards, we conclude that substantial evidence supports the 

13 agency’s credibility determination. 

14 First, the agency did not err in relying on Pepaj’s 

15 credible fear interview to assess his credibility. An IJ may 

16 rely on statements made at a credible fear interview where 

17 the interview record “displays the hallmarks of reliability” 

18 and “represents a sufficiently accurate record of the alien’s 

19 statements to merit consideration.” Ming Zhang v. Holder, 585 

20 F.3d 715, 721, 724 (2d Cir. 2009) (internal quotation marks 

21 omitted). The record here bears sufficient indicia of such 

22 reliability: the asylum officer’s notes were typewritten, 
4

1 Pepaj initialed each page, the officer asked open-ended 

2 questions, and Pepaj expressed no difficulty understanding 

3 the questions or the interpreter. See Ramsameachire v. 

4 Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004) (finding airport 

5 interview record had “hallmarks of accuracy and reliability, 

6 as it [wa]s typewritten, signed by [the petitioner], and 

7 initialed by h[er] on each page”). 

8 Second, in determining that Pepaj was not credible, the 

9 IJ reasonably relied on Pepaj’s contradictory descriptions of 

10 his 2013 attack as contained in his interview statements, 

11 asylum application, and hearing testimony. See Xian Tuan Ye 

12 v. Dep’t of Homeland Sec., 447 F.3d 289, 295 (2d Cir. 2006) 

13 (holding that “material inconsistency in an aspect of [the] 

14 story that served as an example of the very persecution from 

15 which [petitioner] sought asylum . . . afforded substantial 

16 evidence to support the adverse credibility finding” 

17 (internal citation and quotation marks omitted)). For 

18 example, at the hearing, Pepaj testified that his attackers 

19 “threw” a steel pipe at him, while, at his earlier interview, 

20 he had stated that attackers “beat” him with a stick. Pepaj’s 

21 only explanation for the discrepancy was that “somehow the 

22 steel pipe caught [his] hand.” Certified Administrative 
5

1 Record at 108. The IJ was not required to accept Pepaj’s 

2 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 

3 Cir. 2005)(“A petitioner must do more than offer a plausible 

4 explanation for his inconsistent statements to secure relief; 

5 he must demonstrate that a reasonable fact-finder would be 

6 compelled to credit his testimony.” (internal quotation marks 

7 omitted)). 

8 Pepaj now attempts to reconcile his varying accounts by 

9 stating that he “expected” his attackers to beat him. Pet. 

10 Br. at 20-21. However, he did not offer this explanation to 

11 the BIA, and we will not attempt to reconcile his inconsistent 

12 statements after the fact. See Lin Zhong v. U.S. Dep’t of 

13 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (limiting review to 

14 grounds relied on by BIA). 

15 Additional inconsistencies further support the agency’s 

16 adverse credibility determination, notably Pepaj’s 

17 inconsistent accounts of whether his friends faced 

18 political persecution for their involvement with the 

19 Democratic Party. See 8 U.S.C. § 1158(b)(1)(B)(iii). 

20 Pepaj’s application reported that, in 2013, his friends 

21 were “harassed by Socialist thugs” for their political 

22 activities and “attacked by a group of Socialists who 
6

1 screamed and called them traitors.” Certified Record on 

2 Appeal at 218. But Pepaj testified otherwise at the 

3 hearing, stating that his “close friends” had no problems, 

4 “but some friends I knew . . . [had] problems during the 

5 election, but I don’t know exactly what kind of problems 

6 they had.” Certified Record on Appeal at 118. When 

7 pressed, Pepaj could not identify a single incident 

8 regarding these other friends, and, when confronted with 

9 his asylum application, Pepaj responded only that he did 

10 not remember what he wrote in that application. Pepaj’s 

11 lack of knowledge, and even repudiation, of central facts 

12 supporting his asylum application undermined his 

13 credibility. 

14 Finally, Pepaj’s documentary evidence does not 

15 corroborate his alleged attacks or rehabilitate his 

16 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 

17 (2d Cir. 2007) (“An applicant’s failure to corroborate his or 

18 her testimony may bear on credibility, because the absence of 

19 corroboration in general makes an applicant unable to 

20 rehabilitate testimony that has already been called into 

21 question.”). 

22 
7

1 Pepaj testified that after the 2009 attack, his mother 

2 saw him bleeding and, later that day, his father asked him if 

3 he “knew the people that did this.” He also testified that 

4 he showed his parents his bruised finger on the day of the 

5 2013 attack. But his parents’ letter does not mention 

6 physical attacks, and neither do the letters from the 

7 Democratic Party in Albania or the “Association of the Ex 

8 Political[ly] Persecuted.” See Hong Fei Gao, 891 F.3d at 78 

9 (stating that witness’s “silence on particular facts depends 

10 on whether those facts are ones the witness would reasonably 

11 have been expected to disclose”). Furthermore, at the 

12 hearing, Pepaj seemed unsure of the contents of those letters, 

13 and testified that he did not know why the information was 

14 omitted. In short, the documentary evidence does not 

15 corroborate Pepaj’s account of physical attacks. 

16 Accordingly, the “totality of the circumstances” 

17 supports the adverse credibility determination. See Xiu Xia 

18 Lin, 534 F.3d at 167. That determination is dispositive of 

19 asylum, withholding of removal, and CAT relief because all 

20 three claims are based on the same factual predicate. See 

21 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 
8

1 For the foregoing reasons, the petition for review is 

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

3 that the Court previously granted in this petition is VACATED, 

4 and any pending motion for a stay of removal in this petition 

5 is DISMISSED as moot. Any pending request for oral argument 

6 in this petition is DENIED in accordance with Federal Rule of 

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

8 34.1(b). 

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, 

11 Clerk of Court