Elezi-Lita vs Gonzales [Summ. Ord.], (2nd Cir. 2006)

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BIA

Vom ac ka , IJ

A78-962-949

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 28th

day of July, two thousand and six.

PRESENT:

HON. PIERRE N. LEVAL,

HON. ROBERT D. SACK,

HON. RICHARD C. WESLEY,

Circuit Judges.

Besmir Elezi-Lita,

Petitioner,

-v.- No. 04-6402-ag

NAC

Alberto R. Gonzales,1

A78-962-949

Respondent.

FOR PETITIONER: Aleksander Milch, New York, New York.

FOR RESPONDENT: Margaret M. Chiara, United States Attorney for the Western

District of Michigan, John F. Salan, Assistant United States

Attorney, Grand Rapids, Michigan.

Pursuant to Federal Rule of A p p e l l a t e Procedure 43(c)(2), Attorney G e n e r a l Alberto R. Gonzales is

a u t o m a t ic a l ly substituted for former Attorney General John Ashcroft as the respondent in this case.

UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

Besmir Elezi-Lita, through counsel, petitions for review of the BIA's decision affirming Immigration Judge ("IJ") Alan Vomacka's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We assume the parties' familiarity with the underlying facts and procedural history of this case.

Where, as here, the BIA adopts the decision of the IJ and supplements the IJ's decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Since the BIA did not consider the IJ's alternative burden of proof finding, this Court will review only the adverse credibility determination. This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard.

We find that the IJ's adverse credibility determination, as supplemented by the BIA, is supported by substantial evidence. Although we agree with Elezi-Lita that the IJ speculated as to what information should have been included in his Democratic Party membership card, we find that the other non-erroneous factors directly relate to Elezi-Lita's claims, such that we can confidently predict that the agency would reach the same result on remand absent the speculation.

See Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 162 (2d Cir. 2006).

Although it may have been unreasonable for the IJ to base his credibility finding on Elezi Lita's inability to state exactly how many Democrats are currently in parliament, the IJ acted reasonably in concluding that the extent of Elezi-Lita's knowledge about Albanian politics in general was limited. Elezi-Lita stated the same information repeatedly, and the IJ acted reasonably in concluding that Elezi-Lita was unable to answer the questions fully. A reading of the asylum statement and transcript also indicate that Elezi-Lita was confused as to which year some of the October events occurred. Moreover, Elezi-Lita's testimony was inconsistent as to what happened in June 2001. Although he is correct that he mentioned the June 2001 events in his affidavit, his affidavit states only that his father was directly threatened, whereas his testimony implied that he was personally threatened. The IJ also acted reasonably in questioning whether Elezi-Lita was telling the truth about the severity of the incidents, since Elezi-Lita insisted that his grades improved during this time.

We also agree with the IJ's corroboration finding regarding the lack of a supporting letter from Elezi-Lita's father, a person who would have significant knowledge of the events that took place in Albania.

Accordingly, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

FOR THE COURT: Roseann B. MacKechnie, Clerk By: Oliva M. George, Deputy Clerk

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