22-6180

Smakaj v. Garland

BIA

Palmer, IJ

A209 223 882

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 Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 3rd day of September, two thousand 

twenty-four. 

PRESENT: 

RAYMOND J. LOHIER, JR.,

STEVEN J. MENASHI,

EUNICE C. LEE,

Circuit Judges. 

_____________________________________ 

ROBERT SMAKAJ, 

 Petitioner, 

v. 22-6180 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 
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FOR PETITIONER: Michael P. DiRaimondo, Marialaina L. Masi, 

Stacy A. Huber, DiRaimondo & Masi, PC, 

Bohemia, NY. 

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 

Attorney General; Kohsei Ugumori, Senior 

Litigation Counsel; Christin M. Whitacre, 

Trial Attorney, Office of Immigration 

Litigation, United States Department of 

Justice, Washington, DC.

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. 

Petitioner Robert Smakaj, a native and citizen of Albania, seeks review of a 

March 31, 2022 decision of the BIA affirming an October 31, 2019 decision of an 

Immigration Judge (“IJ”) denying his application for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”). In re Robert 

Smakaj, No. A 209 223 882 (B.I.A. Mar. 31, 2022), aff’g No. A 209 223 882 (Immigr. 

Ct. N.Y.C. Oct. 31, 2019). We assume the parties’ familiarity with the underlying 

facts and procedural history. 

Because “the BIA affirmed the IJ’s decision but did not reach the IJ’s 

alternative finding, we review the IJ’s decision as modified by the BIA.” Wei Sun 

v. Sessions, 883 F.3d 23, 27 (2d Cir. 2018). We review legal conclusions de 
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novo and findings of fact for substantial evidence. Singh v. Garland, 11 F.4th 106, 

113 (2d Cir. 2021). “[T]he administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B). 

An asylum applicant has the burden to establish past persecution or a wellfounded fear of future persecution on account of a protected ground. See 8 U.S.C. 

§ 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b). “The testimony of the applicant may 

be sufficient to sustain the applicant’s burden without corroboration, but only if 

the applicant satisfies the trier of fact that the applicant’s testimony is credible, is 

persuasive, and refers to specific facts sufficient to demonstrate that the applicant 

is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). “Where the trier of fact determines that 

the applicant should provide evidence that corroborates otherwise credible 

testimony, such evidence must be provided unless the applicant does not have the 

evidence and cannot reasonably obtain the evidence.” Id.

When, as here, an IJ denies a claim based solely on lack of corroboration, 

“the IJ must (1) point to specific pieces of missing evidence and show that it was 

reasonably available, (2) give the applicant an opportunity to explain the omission, 

and (3) assess any explanation given.” Pinel-Gomez v. Garland, 52 F.4th 523, 529 
4 

(2d Cir. 2022) (internal quotation marks omitted). “No court shall reverse a 

determination made by a trier of fact with respect to the availability of 

corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact 

is compelled to conclude that such corroborating evidence is unavailable.” 

8 U.S.C. § 1252(b)(4)(D). The applicant has the “burden of introducing such 

evidence without prompting from the IJ.” Wei Sun, 883 F.3d at 31 (quoting Liu v. 

Holder, 575 F.3d 193, 198 (2d Cir. 2009)). The agency did not err in concluding that 

Smakaj failed to meet his burden because he did not provide reasonably available 

corroboration. 

Smakaj alleged persecution by Socialist Party members because of his 

membership in the Democratic Party (“DP”) of Albania. The IJ noted a “paucity 

of corroborating evidence” prior to Smakaj’s testimony, expressing concern that 

Smakaj’s brother in the United States did not provide a letter and that his father’s 

letter from Albania did not document Smakaj’s political activism. Certified 

Administrative R. at 126. Smakaj said his brother, who lived in Michigan and was 

an eyewitness to the attacks Smakaj alleged, did not provide a letter or attend his 

hearing because “he’s working” and has “a young daughter” and Smakaj “didn’t 

know” he needed a letter from him. Id. at 145, 156. His father’s letter mentioned 
5 

incidents in 2009, but did not mention the attacks Smakaj allegedly suffered 

between 2013 and 2015 because, Smakaj opined, “possibly he didn’t know he 

needed to.” Id. at 144. Smakaj admitted that it was “possible” that he used the 

same documents as his brother, who was granted asylum and helped Smakaj 

prepare his case. Id. at 149. His mother and friends with knowledge of the 

attacks did not provide letters because Smakaj did not ask them; he explained that 

he did not know he needed them. 

On this record, the agency did not err in concluding Smakaj failed to provide 

reasonably available corroboration because he was able to obtain other 

documentation from Albania, including his DP membership card. Further, his 

brother was in the United States and, at a minimum, could have provided a written 

statement. The IJ followed the proper procedures for corroboration, inquiring 

about each specific piece of evidence and evaluating Smakaj’s explanations. See 

Pinel-Gomez, 52 F.4th at 529. 

Smakaj argues that the IJ failed to give proper weight to his expert report 

from a professor of Balkan history, but that report did not independently

corroborate Smakaj’s claims and its general evidence of Albania’s political 

situation conflicted with State Department reports. The weight afforded to 
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evidence “lies largely within the discretion of the [agency]” and the IJ reasonably 

gave the expert report limited weight. Hui Lin Huang v. Holder, 677 F.3d 130, 138 

(2d Cir. 2012) (alteration in original) (quoting Xiao Ji Chen v. U.S. Dep’t of Just., 471 

F.3d 315, 342 (2d Cir. 2006)); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013)

(“We generally defer to the agency’s evaluation of the weight to be afforded an 

applicant’s documentary evidence.”). 

In sum, the agency identified reasonably available corroboration that could 

have been presented, and the remaining evidence did not reliably confirm 

Smakaj’s political activities or past harm. See 8 U.S.C. § 1158(b)(1)(B)(ii); Y.C., 741 

F.3d at 334 (noting applicant’s “failure to provide any corroborating evidence” of 

her own testimony in determining that there is “no ‘solid support’” for her claim). 

That determination is dispositive because all three forms of relief were based on 

Smakaj’s uncorroborated allegations that he was active in the DP and that he 

suffered past harm because of his political activities. See Lecaj v. Holder, 616 F.3d 

111, 119–20 (2d Cir. 2010) (“Because [petitioner] fails to demonstrate the slight, 

though discernable, chance of persecution required for the grant of asylum, he 

necessarily fails to demonstrate the clear probability of future persecution 
7 

required for withholding of removal, and the more likely than not to be tortured 

standard required for CAT relief.” (internal quotation marks omitted)). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court