12-268

Reci v. Holder

BIA

Elstein, IJ

A098 940 002

A098 940 001

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

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

on the 16th 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 SOFIJE RECI, GENTIAN RECI,

14 Petitioners, 

15

16 v. 12-268

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Theodore N. Cox, New York, New York. 

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Carl H. McIntyre,

27 Assistant Director; W. Daniel Shieh,

28 Trial Attorney, Office of
1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioners Sofije Reci (“Reci”) and her son Gentian,

10 natives and citizens of Albania, seek review of a January

11 10, 2012 decision of the BIA affirming the April 5, 2010

12 decision of an Immigration Judge (“IJ”), which denied Reci’s

application for asylum and withholding of removal.1 13 In re

14 Sofije & Gentian Reci, Nos. A098 940 002/001 (B.I.A. Jan.

15 10, 2012), aff’g Nos. A098 940 002/001 (Immig. Ct. N.Y. City

16 Apr. 5, 2010). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 We have reviewed the IJ’s decision as supplemented by

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

20 Cir. 2005). The applicable standards of review are well

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

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

23 asylum applications such as these, which are governed by the

1 Reci’s application included Gentian as a derivative

applicant, as permitted by 8 U.S.C. § 1158(b)(3).

2
1 amendments to the Immigration and Nationality Act made by

2 the REAL ID Act of 2005, the agency “may rely on any

3 inconsistency or omission in making an adverse credibility

4 determination as long as the ‘totality of the circumstances’

5 establishes that an asylum applicant is not credible.” Xiu

6 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

7 curiam) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Here, the

8 agency’s adverse credibility finding is supported by

9 substantial evidence. 

10 The agency reasonably found that the petitioners were

11 incredible based on their inconsistent testimony regarding

12 the identity of the individuals who allegedly threatened

13 them in December 2004, which family member filed a police

14 report after another alleged incident in April 2005, the

15 dates they resided in a new apartment after the latter

16 incident, and who authored Reci’s asylum application. Xiu

17 Xia Lin, 534 F.3d at 167. The petitioners contend that they

18 provided “sufficient and plausible” explanations for these

19 inconsistencies, but their brief failed to address the first

20 two findings, and their explanation for the latter two

21 findings is insufficient to overturn the agency’s

22 determination. See Majidi v. Gonzales, 430 F.3d 77, 80-81

3
1 (2d Cir. 2005) (explaining that petitioners “must do more

2 than offer a plausible explanation ... to secure relief;

3 [they] must demonstrate that a reasonable fact-finder would

4 be compelled to credit [their] testimony” (internal

5 quotation marks omitted)). 

6 The petitioners also contend that the agency erred in

7 requiring corroborative evidence that was not reasonably

8 available. However, the agency was permitted to require

9 petitioners to submit additional evidence from family

10 members to rehabilitate their incredible testimony. See

11 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

12 curiam). 

13 Because the agency’s adverse credibility determination

14 is supported by substantial evidence, this Court will defer

15 to that ruling. Xiu Xia Lin, 534 F.3d at 167. As the only

16 evidence of a threat to the petitioners’ lives or freedom

17 depended upon their credibility, the adverse credibility

18 determination in this case is dispositive of their claims

19 for both asylum and withholding of removal. See Paul v.

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

21

22

4
1 For the foregoing reasons, the petition for review is

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

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

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

5