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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th**  **day of December, two thousand nineteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **REENA RAGGI,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MIKEL PEPAJ,** 13 Petitioner **,** 14 15 **v. 17-3690** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Michael P. DiRaimondo, Melville, 23 NY. 24 25 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 26 Attorney General; Shelley R. Goad, 27 Assistant Director; Carmel A. 28 Morgan, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Mikel Pepaj, a native and citizen of Albania, 5 seeks review of the BIA’s affirmance of an Immigration Judge’s 6 (“IJ”) denial of Pepaj’s application for asylum, withholding 7 of removal, and relief under the Convention Against Torture 8 (“CAT”). In re Mikel Pepaj, No. A 206 140 284 (B.I.A. Oct. 9 16, 2017), aff’g No. A 206 140 284 (Immig. Ct. N.Y. City Feb. 10 7, 2017). 11 Under the circumstances, we have reviewed the IJ’s 12 decision as modified by the BIA. See Xue Hong Yang v. U.S. 13 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005), applying 14 well established standards of review. See 8 U.S.C. 15 § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 16 (2d Cir. 2018). In so doing, we assume the parties’ 17 familiarity with the underlying facts and procedural history 18 of this case, which we reference only as necessary to explain 19 our decision to deny the petition. 20 “[A] trier of fact may base a credibility determination 21 on the demeanor, candor, or responsiveness of the applicant 223 or witness, the inherent plausibility of the applicant’s or 1 witness’s account, [and] the consistency between the 2 applicant’s or witness’s written and oral statements . . . 3 without regard to whether an inconsistency, inaccuracy, or 4 falsehood goes to the heart of the applicant’s 5 claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 6 defer . . . to an IJ’s credibility determination unless, from 7 the totality of the circumstances, it is plain that no 8 reasonable fact-finder could make such an adverse credibility 9 ruling.” Xiu Xia Lin , 534 F.3d 162, 167 (2d Cir. 2008); 10 accord Hong Fei Gao , 891 F.3d at 76. Applying these 11 standards, we conclude that substantial evidence supports the 12 agency’s credibility determination. 13 First, the agency did not err in relying on Pepaj’s 14 credible fear interview to assess his credibility. An IJ may 15 rely on statements made at a credible fear interview where 16 the interview record “displays the hallmarks of reliability” 17 and “represents a sufficiently accurate record of the alien’s 18 statements to merit consideration.” Ming Zhang v. Holder , 585 19 F.3d 715, 721, 724 (2d Cir. 2009) (internal quotation marks 20 omitted). The record here bears sufficient indicia of such 21 reliability: the asylum officer’s notes were typewritten, 224 Pepaj initialed each page, the officer asked open-ended 1 questions, and Pepaj expressed no difficulty understanding 2 the questions or the interpreter. See Ramsameachire v. 3

Ashcroft , 357 F.3d 169, 181 (2d Cir. 2004) (finding airport 4 interview record had “hallmarks of accuracy and reliability, 5 as it [wa]s typewritten, signed by [the petitioner], and 6 initialed by h[er] on each page”). 7 Second, in determining that Pepaj was not credible, the 8 IJ reasonably relied on Pepaj’s contradictory descriptions of 9 his 2013 attack as contained in his interview statements, 10 asylum application, and hearing testimony. See Xian Tuan Ye 11 v. Dep’t of Homeland Sec. , 447 F.3d 289, 295 (2d Cir. 2006) 12 (holding that “material inconsistency in an aspect of [the] 13 story that served as an example of the very persecution from 14 which [petitioner] sought asylum . . . afforded substantial 15 evidence to support the adverse credibility finding” 16 (internal citation and quotation marks omitted)). For 17 example, at the hearing, Pepaj testified that his attackers 18 “threw” a steel pipe at him, while, at his earlier interview, 19 he had stated that attackers “beat” him with a stick. Pepaj’s 20 only explanation for the discrepancy was that “somehow the 21 steel pipe caught [his] hand.” Certified Administrative 225 Record at 108. The IJ was not required to accept Pepaj’s 1 explanation. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 2 Cir. 2005)(“A petitioner must do more than offer a plausible 3 explanation for his inconsistent statements to secure relief; 4 he must demonstrate that a reasonable fact-finder would be 5 compelled to credit his testimony.” (internal quotation marks 6 omitted)). 7 Pepaj now attempts to reconcile his varying accounts by 8 stating that he “expected” his attackers to beat him. Pet. 9 Br. at 20-21. However, he did not offer this explanation to 10 the BIA, and we will not attempt to reconcile his inconsistent 11

statements after the fact. See Lin Zhong v. U.S. Dep’t of 12 Justice , 480 F.3d 104, 122 (2d Cir. 2007) (limiting review to 13 grounds relied on by BIA). 14 Additional inconsistencies further support the agency’s 15 adverse credibility determination, notably Pepaj’s 16 inconsistent accounts of whether his friends faced 17 political persecution for their involvement with the 18 Democratic Party. See 8 U.S.C. § 1158(b)(1)(B)(iii). 19 Pepaj’s application reported that, in 2013, his friends 20 were “harassed by Socialist thugs” for their political 21 activities and “attacked by a group of Socialists who 226 screamed and called them traitors.” Certified Record on 1 Appeal at 218. But Pepaj testified otherwise at the 2 hearing, stating that his “close friends” had no problems, 3 “but some friends I knew . . . [had] problems during the 4 election, but I don’t know exactly what kind of problems 5 they had.” Certified Record on Appeal at 118. When 6 pressed, Pepaj could not identify a single incident 7 regarding these other friends, and, when confronted with 8 his asylum application, Pepaj responded only that he did 9 not remember what he wrote in that application. Pepaj’s 10 lack of knowledge, and even repudiation, of central facts 11 supporting his asylum application undermined his 12 credibility. 13 Finally, Pepaj’s documentary evidence does not 14 corroborate his alleged attacks or rehabilitate his 15 credibility. See Biao Yang v. Gonzales , 496 F.3d 268, 273 16 (2d Cir. 2007) (“An applicant’s fail ure to corroborate his or 17 her testimony may bear on cre dibility, because the absence of 18 corroboration in general makes an applicant unable to 19 rehabilitate testimony that has already been called into 20 question.”). 21

227 Pepaj testified that after the 2009 attack, his mother 1 saw him bleeding and, later that day, his father asked him if 2 he “knew the people that did this.” He also testified that 3 he showed his parents his bruised finger on the day of the 4 2013 attack. But his parents’ letter does not mention 5 physical attacks, and neither do the letters from the 6 Democratic Party in Albania or the “Association of the Ex 7 Political[ly] Persecuted.” See Hong Fei Gao , 891 F.3d at 78 8 (stating that witness’s “silence on particular facts depends 9 on whether those facts are ones the witness would reasonably 10 have been expected to disclose”). Furthermore, at the 11 hearing, Pepaj seemed unsure of the contents of those letters, 12 and testified that he did not know why the information was 13 omitted. In short, the documentary evidence does not 14 corroborate Pepaj’s account of physical attacks. 15 Accordingly, the “totality of the circumstances” 16 supports the adverse credibility determination. See Xiu Xia 17

Lin , 534 F.3d at 167. That determination is dispositive of 18 asylum, withholding of removal, and CAT relief because all 19 three claims are based on the same factual predicate. See 20

Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 218 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court 11