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.

08-3347-ag

Xholi v. Holder

BIA

Laforest, IJ

A099 077 393

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 Rulings by summary order do not have precedential effect. Citation to

2 a summary order filed on or after January 1, 2007, is permitted and is

3 governed by Federal Rule of Appellate Procedure 32.1 and this court’s

4 Local Rule 32.1.1. When citing a summary order in a document filed

5 with this court, a party must cite either the Federal Appendix or an

6 electronic database (with the notation “summary order”). A party

7 citing a summary order must serve a copy of it on any party not

8 represented by counsel.

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

10 Convention Against Torture (“CAT”). In re Shehat Xholi, No.

11 A099 077 393 (B.I.A. July 19, 2008), aff’g No. A099 077 393

12 (Immig. Ct. N.Y. City Oct. 27, 2006). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of the case. 

15 We review the agency’s factual findings, including

16 adverse credibility determinations, under the substantial

17 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
3

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

10 by the REAL ID Act, the agency may, considering the totality

11 of the circumstances, base a credibility finding on an

12 asylum applicant’s demeanor, the plausibility of his or her

13 account, and inconsistencies in his or her statements,

14 without regard to whether they go “to the heart of the

15 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). 

17 As an initial matter, while Xholi’s brief to the BIA

18 mentioned the IJ's credibility determination, it presented

19 no specific challenge to the credibility-related findings,

20 asserting only that the IJ erroneously focused on “some

21 confusion or mistakes” rather than his claims of

22 persecution. See Lin Zhong v. U.S. Dep’t of Justice, 480
4

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

10 discrepancies in Xholi’s testimony: (1) Xholi testified at

11 his hearing that he was detained for 24 hours, but stated

12 during his asylum interview that he was detained for a

13 period of six hours, and (2) Xholi testified that Socialists

14 shot at him on October 20, 2004, but stated during an asylum

15 interview that the event took place in December 2004. Xholi

16 argues that the IJ erred in failing to consider his

17 explanation for the inconsistency regarding the length of

18 his detention – that he was “out of his mind.” However, the

19 IJ considered Xholi’s explanation, and was not compelled to

20 accept it. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

21 2005). Even if these inconsistencies were deemed minor, the

22 IJ was entitled to rely on their cumulative effect. Xiu Xia
5

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

10 lack of corroboration to support her credibility

11 determinations. See Biao Yang v. Gonzales, 496 F.3d 268,

12 273 (2d Cir. 2007) (Explaining that an applicant’s failure

13 to corroborate his or her testimony may bear on credibility,

14 either because the absence of particular corroborating

15 evidence is viewed as suspicious, or because the absence of

16 corroboration in general makes an applicant unable to

17 rehabilitate testimony that has already been called into

18 question).

19 These proper findings notwithstanding, the agency erred

20 in finding that Xholi lacked corroborating evidence from his

21 brother, as the record reveals that Xholi submitted a

22 declaration from his brother stating that he was attacked by
6

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

10 evidence concerning the alleged attack against Xholi’s

11 brother; instead, the IJ appeared to reach the adverse

12 credibility determination based on the cumulative effect of

13 the other findings. See Xiu Xia Lin, 534 F.3d at 165-66.

14 Accordingly, the agency’s denial of Xholi’s asylum

15 application was proper. 

16 Because the IJ’s adverse credibility finding was

17 supported by substantial evidence, we need not reach her

18 alternative findings that, even assuming credibility, Xholi

19 failed to sustain his burden of proof to establish past

20 persecution or a well-founded fear of future persecution. 

21 Lastly, because Xholi’s claims for withholding of

22 removal and CAT relief share the same factual predicate as
7

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

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

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT:

13 Catherine O’Hagan Wolfe, Clerk

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