15-2939 Rrukaj v. Sessions BIA Cheng, IJ A201 295 158 

### 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **28 th**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PETER W. HALL,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **KLISMAN RRUKAJ,** 13 Petitioner **,** 14 15 **v. 15-2939** 16 **NAC** 17 18 **JEFFERSON B. SESSIONS III,** 19 **UNITED STATES ATTORNEY GENERAL*,** 20 21 Respondent **.** 22

**_____________________________________** 23 24 ***** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 25 General Jefferson B. Sessions III is automatically substituted for 26 former Attorney General Loretta E. Lynch as Respondent. 27 28 292 **FOR PETITIONER:** Joshua Bardavid, New York, New York. 1 2 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 3 Assistant Attorney General; Holly M. 4 Smith, Senior Litigation Counsel; 5 Juria L. Jones, Trial Attorney; 6 Office of Immigration Litigation, 7 United States Department of Justice, 8 Washington, D.C. 9 10 UPON DUE CONSIDERATION of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 ORDERED, ADJUDGED, AND DECREED that the petition for review is 13

DENIED. 14 Petitioner Klisman Rrukaj, a native and citizen of Albania, 15 seeks review of an August 21, 2015, decision of the BIA affirming 16 a November 24, 2014, decision of an Immigration Judge (“IJ”) 17 denying Rrukaj’s application for asylum, withholding of 18 removal, and relief under the Convention Against Torture 19 (“CAT”). In re Klisman Rrukaj, No. A201 295 158 (B.I.A. Aug. 20 21, 2015), aff’g No. A201 295 158 (Immig. Ct. N.Y. City Nov. 21 24, 2014). We assume the parties’ familiarity with the 22 underlying facts and procedural history in this case. 23 Under the circumstances of this case, we have reviewed both 24 the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales , 432 25 F.3d 391, 394 (2d Cir. 2005). The applicable standards of 263 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 1 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008) 2 (reviewing adverse credibility determination for substantial 3 evidence). The agency may, “[c]onsidering the totality of the 4 circumstances,” base an adverse credibility ruling on 5 inconsistencies between an asylum applicant’s testimony and 6 other record evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); see 7 also Xiu Xia Lin , 534 F.3d at 163-64. “We defer . . . to an 8 IJ’s credibility determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder could 10 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 11 at 167. 12 Substantial evidence supports the agency’s determination 13 that Rrukaj was not credible. The agency reasonably based its 14 credibility ruling on three discrepancies between Rrukaj’s 15 testimony and the record evidence. First, Rrukaj’s testimony 16 that his sister Xhoana could not testify because she lived in 17 Michigan conflicted with his asylum application listing her 18 current location as New York. See 8 U.S.C. 19 § 1158(b)(1)(B)(iii). Second, his testimony that he was 20 treated at Shkoder Hospital after being attacked in 2010 214 contradicted the medical report he submitted, which was 1 authored by a doctor from Kelmend Commune Health Center. Id. 2 Third, Rrukaj told the asylum officer at his credible fear 3 interview that neither he nor any of his family members were 4 involved in politics, but his asylum application and testimony 5 focused on his father’s involvement with political opposition 6 parties, which was a central aspect of his claim. See Ming 7 Zhang v. Holder , 585 F.3d 715, 725 (2d Cir. 2009). The agency 8 reasonably rejected Rrukaj’s explanations for these 9 discrepancies. Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 10 2005). 11 In this Court, Rrukaj does not challenge these 12 inconsistency findings, but alleges for the first time that the 13 agency improperly overlooked a declaration from his parents 14 which rehabilitates his testimony and requires remand. We 15 decline to consider this issue because Rrukaj failed to exhaust 16 it before the agency. Lin Zhong v. U.S. Dep’t of Justice , 480 17 F.3d 104, 122 (2d Cir. 2007) (providing that judicially imposed 18 issue exhaustion is mandatory); Foster v. INS , 376 F.3d 75, 78 19 (2d Cir. 2004) (issues must generally be raised before the BIA 20 in order to be preserved for judicial review). 215 The IJ reasonably concluded that Rrukaj’s corroborating 1 evidence did not rehabilitate his inconsistent testimony, 2 especially because he did not offer affidavits or testimony from 3 his sisters in the United Sta tes or submit country conditions 4 evidence regarding whether individuals in Albania are targeted 5

on account of their family members’ political activities. Biao 6 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 7 Given the multiple inconsistencies between Rrukaj’s 8 testimony and the record evidence and his lack of rehabilitative 9 corroborating evidence, the totality of the circumstances 10 supports the agency’s credibility finding. Xiu Xia Lin , 534 11 F.3d at 167; Biao Yang , 496 F.3d at 273. Because Rrukaj’s 12 claims for asylum, withholding of removal, and CAT relief were 13 based on the same factual predicate, the adverse credibility 14 determination is dispositive of all three forms of relief. 15 Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our rev iew, any stay of removal 18 that the Court previously granted in this petition is VACATED, 19 and any pending motion for a stay of removal in this petition 20 is DISMISSED as moot. Any pending request for oral argument 216 in this petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 2 34.1(b) 3
FOR THE COURT: 4 Catherine O = Hagan Wolfe, Clerk 5