12-620

Lajqi v. Holder

BIA

Vomacka, IJ

A099 427 390

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

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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

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

on the 7th day of November, two thousand thirteen.

PRESENT:

JOHN M. WALKER, JR.,

PETER W. HALL,

DENNY CHIN,

Circuit Judges.

_______________________________________

SHABAN LAJQI,

Petitioner, 

 v. 12-620

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Gregory Marotta, Vernon, NJ.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Blair O’Connor,

Assistant Director; Rachel L.

Browning, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED in part and DENIED in part.

Shaban Lajqi, a native of the former Yugoslavia and

citizen of what is recognized today as Kosovo, seeks review

of a January 25, 2012 decision of the BIA affirming the July

10, 2009 decision of Immigration Judge (“IJ”) Alan A.

Vomacka, which pretermitted his asylum application and

denied his application for withholding of removal and relief

under the Convention Against Torture (“CAT”). In re Shaban

Lajqi, No. A099 427 390 (B.I.A. Jan. 25, 2012), aff’g No.

A099 427 390 (Immig. Ct. N.Y. City July 10, 2009). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented and modified by the

BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005). The applicable standards of review are

well-established. See 8 U.S.C. § 1252(b)(4)(B); see also

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

Because Lajqi does not challenge the denial of CAT relief,

we review only the denial of asylum and withholding of

removal.

I. Asylum

This Court lacks jurisdiction to review the

pretermission of an asylum application unless the petitioner

raises a colorable constitutional claim or question of law. 

See 8 U.S.C. § 1252(a)(2)(C),(D); Barco-Sandoval v.

Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (“[W]e lack

jurisdiction to review any legal argument that is so

insubstantial and frivolous as to be inadequate to invoke

federal-question jurisdiction.”). Lajqi fails to do so,

challenging only the IJ’s factual findings. See Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

2006) (distinguishing an argument that “merely quarrels over

the correctness of the factual findings or justification for

the discretionary choices, in which case the court would

lack jurisdiction, [with one that] raises a [reviewable]

‘constitutional claim’ or ‘question of law’”). Lajqi argues

that the IJ failed to consider expert testimony that his

post-traumatic stress disorder (“PTSD”) could account for

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the inconsistencies in his testimony, therefore, raising a

question of law. See id. at 336 n.17. His argument is

baseless, however, because the expert did not so testify and

the IJ explicitly considered Lajqi’s testimony that memory

loss could account for the inconsistencies. 

II. Withholding of Removal

Lajqi’s application is governed by the amendments made

to the Immigration and Nationality Act by the REAL ID Act of

2005. In considering the totality of the circumstances, the

agency may base a credibility finding on the applicant’s

“demeanor, candor, or responsiveness,” the plausibility of

his account, and inconsistencies in his statements, without

regard to whether “ an inconsistency ... goes to the heart

of the applicant’s claim.” See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 163 n.2 (2d Cir. 2008) (per curiam). 

We will “defer therefore to an IJ’s credibility

determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 

Here, the IJ reasonably based his adverse credibility

determination on inconsistencies in Lajqi’s testimony and

inconsistencies between his testimony and his asylum

application statement, including: (1) Lajqi’s conflicting

testimony that he left Kosovo in February 2004 and arrived

to the United States in September 2005, which contradicted

his later testimony that he left Kosovo in late 2004 and

arrived to the United States in January 2005, and his asylum

statement demonstrating that he entered in February 2005;

(2) Lajqi’s testimony that he spent 10 days in Mexico en

route to the United States, which contradicted his statement

that he stayed 30 days in Mexico; (3) his testimony that his

cousin was alone when shot and killed along with two other

individuals, which contradicted his statement that his

cousin was with his friend when shot and killed along with

three other individuals; and (4) his testimony that he was

first attacked by extremists opposed to his political party

in March 2004, and sought medical assistance two months

thereafter, which contradicted his later testimony that he

was attacked in May 2004 and immediately visited a doctor. 

See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia

Lin, 534 F.3d at 167. 

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Moreover, the IJ reasonably rejected Lajqi’s

explanations because they did not explain fully the

inconsistencies between his testimony and asylum

application. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005). Lajqi’s assertion, for instance, that memory

loss due to either PTSD or time, caused him to provide an

entry date in testimony different from the date stated in

his asylum application did not sufficiently explain the

discrepancies. Similarly, Lajqi’s explanation that his

testimony that he spent 10 days in Mexico was intended to

reference his time on the border rather than the total

amount of time spent in the country contradicted his asylum

application, which stated that he was in Mexico City from

January 17 to February 10 and then traveled toward the

border, crossing into the United States on February 17,

2005. Lajqi’s explanation that the fourth person he failed

to mention when describing his cousin’s murder was wounded

also failed to rectify his application statement that all

four individuals who were shot were killed. Finally, the IJ

reasonably rejected Lajqi’s attempt to rectify his

contradictory testimony regarding his medical visit as

insufficient. Lajqi’s claim that he did not testify to

waiting two months to see a doctor, and that his bruises

were visible two months after his attack, contradicted his

other testimony that he did wait two months after his attack

to visit a doctor. His contradictory testimony also fails to

explain the date of the attack itself. The IJ therefore

reasonably relied on these inconsistencies in finding that

Lajqi lacked credibility. See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

at 167. 

 The IJ also reasonably relied on the implausibility of

aspects of Lajqi’s testimony in making an adverse

credibility determination, specifically: (1) Lajqi’s

failure to remember important political elections in Kosovo,

despite claiming persecution based on his involvement in

Kosovan politics; and (2) Lajqi’s belief that an Albanian

ethnic group doctor would give dangerous or ineffective

medical treatment to someone aligned with a different

political group. See Xiao Ji Chen, 471 F.3d at 336 n.16 

(upholding an implausibility finding because the finding was

not based on flawed reasoning, speculation, or conjecture). 

Lajqi challenges the IJ’s rejection of the expert witness’s

testimony that his PTSD may have caused him to forget

important Kosovan election dates. Because the expert’s

testimony was not based on her direct assessment of Lajqi

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but rather on the hypothetical posed by the Government’s

attorney, the testimony does not compel the conclusion that

Lajqi’s failure to recall the elections was due to his PTSD

or memory loss. See Majidi, 430 F.3d at 80-81. 

Furthermore, despite the IJ’s remarks that the expert may

have been biased, the BIA did not err in finding that the

remarks were harmless error because the IJ reasonably found

that the expert’s testimony did not explain whether or how

PTSD would prevent an individual from remembering momentous

events or explain the discrepancies in Lajqi’s testimony. 

The IJ’s error, therefore, did not change the outcome of the

proceedings and did not deprive Lajqi of due process. See

Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d

Cir. 2006) (noting that “[d]ue process requires that an

applicant receive a full and fair hearing which provides a

meaningful opportunity to be heard.”). 

Given these inconsistencies and implausibilities, the

totality of the circumstances supports the agency’s adverse

credibility determination. See 8 U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

at 163 n.2. As the only evidence of a threat to Lajqi’s

life or freedom depended upon his credibility, the adverse

credibility determination in this case necessarily precludes

success on his claim for withholding of removal. See Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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