Pursuant to Federal Rule of Appellate Procedure 1 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 08 -33 47 -ag Xho li v. Holder BIA L af ore st , I J A099 077 393 

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# SUM MARY O RDE R

1 Rul ing s b y s ummaryor derdono t h ave pr ece den tia l e ffe ct. Ci tat ionto 2 a s ummaryor derfi led onoraf terJa nua ry 1, 200 7, is permit ted an d i s 3 govern ed by Federa l R ule ofAppel late P roc edu re 32. 1 a nd thi s c our t’s 4 Loc al Rul e 3 2.1 .1. Wh en cit ing a sum mar y o rde r i n ado cum entfi led 5 with this co urt , apa rtymu st cite e ith er the Fe der al App end ix or an 6 ele ctr oni c databas e ( with the not ati on “summa ry order” ). A p arty 7 cit ing

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ustse rve a cop y o f i t o n a ny par ty not 8 rep res ented by cou nse l. 9 10 At a stated term of the United States Court of Appeals 11 for the Second Circuit, held at the Daniel Patrick Moynihan 12 United States Courthouse, 500 Pearl Street, in the City of 13 New York, on the 8 day of February, two thousand ten. th 14 15 PRESENT: 16 DENNIS JACOBS, 17 Chief Judge, 18 PIERRE N. LEVAL, 19 PETER W. HALL, 20 Circuit Judges . 21

_______________________________________ 22 23 SHEHAT XHOLI, 24 Petitioner , 25 26 v. 08-3347-ag 27 NAC 28 ERIC H. HOLDER, Jr., U.S. ATTORNEY 29 GENERAL, 1 30 Respondent . 31

_______________________________________2 1 FOR PETITIONER: Andrew P. Johnson, New York, New 2 York. 3 4 FOR RESPONDENT: Gregory G. Katsas, Assistant 5 Attorney General, Ernesto H. Molina, 6 Jr., Assistant Director, Dana M. 7 Camilleri, Trial Attorney, Office of 8 Immigration Litigation, Civil 9 Division, United States Department 10 of Justice, Washington, D.C. 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 Shehat Xholi, a native and citizen of 6 Albania, seeks review of a July 19, 2008 order of the BIA 7 affirming the October 27, 2006 decision of Immigration Judge 8 (“IJ”) Brigitte Laforest, denying his application for 9 asylum, withholding of removal, and relief under the 1 0 Convention Against Torture (“CAT”). In re Shehat Xholi , No. 1 1 A099 077 393 (B.I.A. July 19, 2008), aff’g No. A099 077 393 1 2 (Immig. Ct. N.Y. City Oct. 27, 2006). We assume the 1 3 parties’ familiarity with the underlying facts and 1 4 procedural history of the case. 1 5 We review the agency’s factual findings, including 1 6 adverse credibility determinations, under the substantial 1 7 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also3 1 Corovic v. Mukasey , 519 F.3d 90, 95 (2d Cir. 2008). We 2 review de novo questions of law and the application of law 3 to undisputed fact. See Salimatou Bah v. Mukasey , 529 F.3d 4 99, 110 (2d Cir. 2008). 5 Because Xholi filed his asylum application after May 6 11, 2005, the amendments made to the Immigration and 7 Nationality Act by the REAL ID Act of 2005 apply to his 8 asylum application. See Pub. L. No. 109-13, § 101(h)(2), 9 119 Stat. 231, 305 (2005). For asylum applications governed 1 0 by the REAL ID Act, the agency may, considering the totality 1 1 of the circumstances, base a credibility finding on an 1 2 asylum applicant’s demeanor, the plausibility of his or her 1 3 account, and inconsistencies in his or her statements, 1 4 without regard to whether they go “to the heart of the 1 5 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 16 Matter of J-Y-C- , 24 I. & N. Dec. 260, 265 (BIA 2007). 1 7 As an initial matter, while Xholi’s brief to the BIA 1 8 mentioned the IJ's credibility determination, it presented 1 9 no specific challenge to the credibility-related findings, 2 0 asserting only that the IJ erroneously focused on “some 2 1 confusion or mistakes” rather than his claims of 2 2 persecution. See Lin Zhong v. U.S. Dep’t of Justice , 4804 1 F.3d 104, 125 (2d Cir. 2007) (describing the issue 2 exhaustion requirement as “mandatory”). However, because 3 the BIA addressed some of the credibility issues not raised 4 by Xholi, those specific issues are considered exhausted, 5 and we may review them. See Xian Tuan Ye v. DHS , 446 F.3d 6 289, 296-97 (2d Cir. 2006); Waldron v. INS , 17 F.3d 511, 515 7 n.7 (2d Cir. 1994). 8 Substantial evidence supports the agency’s adverse 9 credibility determination. The IJ noted several 1 0 discrepancies in Xholi’s testimony: (1) Xholi testified at 1 1 his hearing that he was detained for 24 hours, but stated 1 2 during his asylum interview that he was detained for a 1 3 period of six hours, and (2) Xholi testified that Socialists 1 4 shot at him on October 20, 2004, but stated during an asylum 1 5 interview that the event took place in December 2004. Xholi 1 6 argues that the IJ erred in failing to consider his 1 7 explanation for the inconsistency regarding the length of 1 8 his detention – that he was “out of his mind.” However, the 1 9 IJ considered Xholi’s explanation, and was not compelled to 2 0 accept it. Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2 1 2005). Even if these inconsistencies were deemed minor, the 2 2 IJ was entitled to rely on their cumulative effect. Xiu Xia5 1 Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); see also 2 Tu Lin v. Gonzales , 446 F.3d 395, 402 (2d Cir. 2006). 3 Accordingly, under the REAL ID Act, the IJ properly relied 4 on these inconsistencies in denying Xholi’s application for 5 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin , 6 534 F.3d at 167. 7 Furthermore, contrary to Xholi’s argument, the IJ was 8 not required to identify missing corroborating evidence and 9 to make a finding as to its availability before relying on a 1 0 lack of corroboration to support her credibility 1 1 determinations. See Biao Yang v. Gonzales , 496 F.3d 268, 1 2 273 (2d Cir. 2007) (Explaining that an applicant’s failure 1 3 to corroborate his or her testimony may bear on credibility, 1 4 either because the absence of particular corroborating 1 5 evidence is viewed as suspicious, or because the absence of 1 6 corroboration in general makes an applicant unable to 1 7 rehabilitate testimony that has already been called into 1 8 question). 1 9 These proper findings notwithstanding, the agency erred 2 0 in finding that Xholi lacked corroborating evidence from his 2 1 brother, as the record reveals that Xholi submitted a 2 2 declaration from his brother stating that he was attacked by6 1 three people during a 2006 visit to Albania. However, even 2 assuming this finding was erroneous, remand would be futile 3 in this case because the IJ’s broader credibility 4 determination is amply supported by the record and we can 5 confidently predict based on the IJ’s non-erroneous 6 findings, that the agency would reach the same credibility 7 determination absent this error. See Xiao Ji Chen v. U.S. 8 Dep’t of Justice , 471 F.3d 315, 335 (2d Cir. 2006). The IJ 9 did not rely disproportionately on the lack of corroborating 1 0 evidence concerning the alleged attack against Xholi’s 1 1 brother; instead, the IJ appeared to reach the adverse 1 2 credibility determination based on the cumulative effect of 1 3 the other findings. See Xiu Xia Lin , 534 F.3d at 165-66. 1 4 Accordingly, the agency’s denial of Xholi’s asylum 1 5 application was proper. 1 6 Because the IJ’s adverse credibility finding was 1 7 supported by substantial evidence, we need not reach her 1 8 alternative findings that, even assuming credibility, Xholi 1 9 failed to sustain his burden of proof to establish past 2 0 persecution or a well-founded fear of future persecution. 2 1 Lastly, because Xholi’s claims for withholding of 2 2 removal and CAT relief share the same factual predicate as7 1 his asylum claim, those claims necessarily fail. See Paul 2 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang 3 v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 1 0 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 1 Circuit Local Rule 34.1(b). 1 2 FOR THE COURT: 1 3 Catherine O’Hagan Wolfe, Clerk 14 15 16