17-3529 Hysaj v. Barr BIA Poczter, IJ A208 752 131 

### 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** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 29 th**  **day of October, two thousand nineteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **SUSAN L. CARNEY,** 8 **MICHAEL H. PARK,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **EMANUEL HYSAJ,** 13 Petitioner **,** 14 15 **v. 17-3529** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Oleh R. Tustaniwsky, Esq., 23 Brooklyn, NY. 24 25 **FOR RESPONDENT:** Joseph H. Hunt, Acting Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; 28 Patricia E. Bruckner, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 332 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 Emanuel Hysaj, a nat ive and citizen of 5 Albania, seeks review of an October 12, 2017 decision of the 6 BIA affirming a December 5, 2016 decision of an Immigration 7 Judge (“IJ”) denying Hysaj’s application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Emanuel Hysaj, No. A 208 752 10 131 (B.I.A. Oct. 12, 2017), aff’g No. A 208 752 131 (Immig. 11 Ct. N.Y. City Dec. 5, 2016). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as supplemented by the BIA. See Yan Chen 16 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the 17 agency’s factual findings for substantial evidence and its 18 legal conclusions de novo. See Niang v. Holder , 762 F.3d 19 251, 253 (2d Cir. 2014); see also Hong Fei Gao v. Sessions , 20 891 F.3d 67, 76 (2d Cir . 2018) (reviewing adverse credibility 21 determination under a substantial evidence standard). 223 Frivolous Finding 1 “A person who makes an application for asylum determined 2 to be ‘frivolous,’ or deliberately and materially false, is 3 subject to a grave penalty: permanent ineligibility for most 4 forms of relief under the immigration laws.” Mei Juan Zheng 5 v. Mukasey , 514 F.3d 176, 178 (2d Cir. 2008); see also 8 6 U.S.C. § 1158(d)(6) (“If the Attorney General determines that 7 an alien has knowingly made a frivolous application for asylum 8 and the alien has received the notice [of the consequences of 9 filing a frivolous application], the alien shall be 10 permanently ineligible for any benefits under this chapter, 11 effective as of the date of a final determination on such 12 application.”). Before being subject to this permanent bar, 13 Hysaj was entitled to procedural safeguards: “(1) notice . . 14 . of the consequences of filing a frivolous application; (2) a 15 specific finding . . . that [he] knowingly filed a frivolous 16 application; (3) sufficient evidence in the record to support 17 the finding that a material e lement of the asylum application 18 was deliberately fabricated; and (4) . . . sufficient 19 opportunity to account for a ny discrepancies or implausible 20 aspects of the claim.” In re Y-L- , 24 I. & N. Dec. 151, 155 214 (BIA 2007). Hysaj disputes only that the third requirement 1

was met. 2 The record supports the agency’s conclusion that Hysaj 3 deliberately fabricated a material part of his claim. 4 Hysaj’s testimony was internally inconsistent regarding 5 whether he was frightened by June 201 5 threatening phone call 6 or calls and whether as a result he took any steps to protect 7 himself or left the country, and he omitted from his written 8 statement and direct testimony that he left Albania for two 9 weeks in the summer of 2015 to try to come to the United 10 States. Although Hysaj argues that he never testified that 11 he remained in Albania during the rel evant period, the agency 12 could reasonably expect that, when he was asked about his 13 activities in July 2015, Hysaj would disclose that he left 14 Albania for two weeks. See Hong Fei Gao , 891 F.3d at 78–79 15 (“[I]n assessing the probative value of the omission of 16 certain facts, an IJ should consider whether those facts are 17 ones that a credible petitioner would reasonably have been 18 expected to disclose under the relevant circumstances.”); see 19 also In re Y-L- , 24 I. & N. Dec. at 158 (“[P]roof that conduct 20 was knowing or deliberate may be demonstrated by 21 circumstantial evidence.”). Furthermore, Hysaj gave 225 “dramatically different” accounts of what happened in June 1 and July 2015. Cf. Majidi v. Gonzales , 430 F.3d 77, 80 (2d 2 Cir. 2005) (determining that a petitioner’s “dramatically 3 different” accounts of an incident provides substantial 4 evidence for adverse credibility determination). Hysaj 5 changed his testimony from reporting that he was not 6 frightened by the June 2015 threat or threats and took no 7 steps to protect himself to stating that he was so frightened 8 by the call or calls that he left Albania and tried to come 9 to the United States. His admission that he fled Albania in 10 June 2015 also contradicts his written statement—that he and 11 his family concluded that he needed to leave for the United 12 States after he was assaulted in November 2015. These 13 conflicting versions of events support the agency’s 14 conclusion that he fabricated his claim of political 15 persecution. Cf. Majidi , 430 F.3d at 80. Given these 16 contradictions, which implicated the harm he suffered and 17 feared and the extent of his p olitical activities, the agency 18 did not err in finding that he fabricated a material aspect 19 of his asylum claim. See In re Y-L- , 24 I. & N. Dec. at 155. 20 Adverse Credibility Determination 216 The governing credibility standard under the REAL ID Act 1 is as follows: 2 Considering the totality of the circumstances, and 3 all relevant factors, a trier of fact may base a 4 credibility determination on . . . the consistency 5 between the applicant’s or witness’s written and 6 oral statements . . . , the internal consistency of 7 each such statement, the consistency of such 8 statements with other evidence of record . . . , and 9 any inaccuracies or falsehoods in such statements, 10 . . . or any other relevant factor. 11 12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 13 credibility determination unless . . . it is plain that no 14 reasonable fact-finder could make such an adverse credibility 15 ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 16 2008); accord Hong Fei Gao , 891 F.3d at 76. Substantial 17 evidence supports the agency’s adverse credibility 18 determination. 19 First, as discussed above, t here were inconsistencies in 20 Hysaj’s written and oral statements regarding whether he was 21 frightened by June 2015 threatening phone call or calls and 22 whether he took steps to protect himself or left the country 23 as a result. The IJ could reasonably expect that Hysaj would 24 disclose a previous attempt to escape persecution in his 25 asylum application and that he would mention that attempt 267 when asked about his activities during the period he was 1 outside Albania. See Hong Fei Gao , 891 F.3d at 78–79. 2 Second, additional findings bolster the adverse 3 credibility determination. Hysaj concedes that his testimony 4 was inconsistent regarding whether he reported the June 2015 5 threat or threats to the police and whether Democratic Party 6 leaders told him to contact the police. The agency was not 7 required to credit his correction to conform with his 8 application. See Majidi , 430 F.3d at 80 (“A petitioner must 9 do more than offer a plausible explanation for his 10 inconsistent statements to secure relief; he must demonstrate 11 that a reasonable fact-finder would be compelled to credit 12 his testimony.” (internal quotation marks omitted)). 13 Furthermore, whether Hysaj contacted the police regarding the 14 threats is significant because it implicates whether “the 15 government is unable or unwilling” to control his alleged 16 persecutors. See Pan v. Holder , 777 F.3d 540, 543 (2d Cir. 17 2015). The agency also reasonably relied on Hysaj’s omission 18 from his direct testimony that he was threatened with a knife 19 because he was asked twice about the problems he experienced 20 and only generally stated in response that he “had many 21 threats.” See Hong Fei Gao , 891 F.3d at 78–79. 228 Given these inconsistencies and omissions, substantial 1 evidence supports the agency’s adverse credibility 2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 3 Lin , 534 F.3d at 167. Because Hysaj’s claims were all based 4 on the same factual predicate, the adverse credibility 5 determination is dispositive of asylum, withholding of 6 removal, and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 7 156-57 (2d Cir. 2006). 8 For the foregoing reasons, the petition for review is 9 DENIED. All pending motions and applications are DENIED and 10 stays VACATED. 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court 14