09-4014-ag

Xhafer-Mulaj v. Holder

BIA

Schoppert, IJ

A094 896 345

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 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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 22 day of July, two thousand ten. nd

PRESENT:

JOSÉ A. CABRANES,

ROBERT A. KATZMANN,

REENA RAGGI,

 Circuit Judges. 

______________________________________

QENDRIM XHAFER-MULAJ,

Petitioner, 

 v. 09-4014-ag

NAC

ERIC H. HOLDER, JR., 

UNITED STATES ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Sam Gjoni, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Michael P. Lindemann,

Assistant Director; Christopher C.

Fuller, Senior Litigation Counsel,

Civil Division; Caitlyn Walters, Law

Student Clerk; Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

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 DENIED.

Qendrim Xhafer-Mulaj, a native of Yugoslavia and

citizen of Serbia, seeks review of an August 28, 2009, order

of the BIA affirming the December 18, 2007, decision of

Immigration Judge (“IJ”) Douglas B. Schoppert, which denied

his application for asylum, withholding of removal, and

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

Qendrim Xhafer-Mulaj, No. A094 896 345 (BIA Aug. 28, 2009),

aff’g No. A094 896 345 (Immig. Ct. N.Y. City Dec. 18, 2007). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we review the

IJ’s decision including the portions not explicitly

discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d

391, 394 (2d Cir. 2005). We review an IJ’s factual

findings, including adverse credibility determinations,

under the substantial evidence standard. Id.; see 8 U.S.C.

§ 1252(b)(4)(B). Under the REAL ID Act, which applies in

this case, “an IJ may rely on any inconsistency or omission

in making an adverse credibility determination as long as

the ‘totality of the circumstances’ establishes that an
3

asylum applicant is not credible.” Xiu Xia Lin v. Mukasey,

534 F.3d 162, 167 (2d Cir. 2008).

Substantial evidence supports the IJ’s adverse

credibility determination. See id.; Yun-Zui Guan, 432 F.3d

at 394. In support of that determination, the IJ found

that: (1) although Xhafer-Mulaj stated in his asylum

application that only one man approached him on the street

and threatened him, he testified that two men approached

him; (2) although Xhafer-Mulaj stated in his asylum

application that he received threatening letters and phone

calls, he testified that he had not and denied including

that information in his application; and (3) Xhafer-Mulaj’s

testimony that Besnik Kastrati was killed by the police for

political reasons was contradicted by the U.S. State

Department Country Report for Serbia, which indicated that

he was killed because of a blood feud, and that the police

officer who killed him was convicted and sentenced to ten

years’ imprisonment.

 Rather than challenge the IJ’s findings, Xhafer-Mulaj

argues before this Court that “he did not w[ai]ver during

his oral testimony regarding the one incident that presented

an inconsistency with the written affidavit he had submitted

to the court” and that he “was not aware of what was
4

submitted in writing to the court.” As discussed above,

however, the IJ identified several inconsistencies in

Xhafer-Mulaj’s testimony. Moreover, at a hearing before the

IJ, Xhafer-Mulaj acknowledged his familiarity with the

contents of his asylum application and testified that his

statement was true and correct. Accordingly, the IJ’s

adverse credibility determination was supported by

substantial evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1252(b)(4)(B); see also Majidi v. Gonzales, 430 F.3d 77, 80-

81 (2d Cir. 2005)(“A petitioner must do more than offer a

plausible explanation for his inconsistent statements to

secure relief; he must demonstrate that a reasonable factfinder would be compelled to credit his testimony.”)

(internal quotations marks omitted). Because Xhafer-Mulaj’s

claims were all based on the same factual predicate, the

agency’s denial of his application for asylum, withholding

of removal, and CAT relief was proper. See Paul v.

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

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk