Opinion
No. 10-2787-ag.
August 17, 2011.
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.
Russell R. Abrutyn, Marshal E. Hyman Associates, PC, Troy, Michigan, for Petitioners.
Tony West, Assistant Attorney General; Blair T. O'Connor, Assistant Director; John B. Holt, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: REENARAGGI, RICHARD C. WESLEY and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Florinda Berisha and her children, Ambra Toma and Floridi Toma, natives and citizens of Albania, seek review of a June 30, 2010 order of the BIA affirming the December 2, 2003 decision of Immigration Judge ("IJ") Barbara A. Nelson, which denied their application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), as well as Ambra and Floridi Toma's motion to reopen. In re Berisha, Nos. A095 862 069/A095 862 070/A029 757 879 (B.I.A. June 30, 2010), affg Nos. A095 862 069/A095 862 070/A029 757 879 (Immig.Ct.N.Y.C. Dec. 2, 2003). We assume the parties' familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the BIA's factual findings for substantial evidence, treating those findings as conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary, and we review questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder; 562 F.3d 510, 513 (2d Cir. 2009).
I. Berisha's Application for Relief
Substantial evidence supports the agency's adverse credibility determination in this case. See Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d Cir. 2009). The agency reasonably considered inconsistencies among Berisha's asylum application, testimony, and submitted evidence. Specifically, Berisha's application stated that she was threatened and beaten after being terminated from her job, but she testified that she received threats before being fired and was not detained or beaten. Moreover, Berisha testified that in 2001 a man who had previously threatened her about her political activities hit her daughter with his car; her asylum application, however, merely mentions that her daughter was injured in a car accident because the driver was speeding. In addition to these inconsistencies, the medical report Berisha presented to corroborate the 2001 incident showed a 1994 hospitalization that predated Berisha's daughter's birth, and did not mention a car accident. The agency reasonably determined that the cumulative effect of these inconsistencies was substantial when measured against the record as a whole. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006); Secaida-Ro-sales v. INS, 331 F.3d 297, 307-09 (2d Cir. 2003), abrogated in part by 8 U.S.C. § 1158(b)(1)(B)(iii).
Although the Real ID Act abrogated in part our holding in Secaida-Rosales for cases filed after May 11, 2005, Berisha's application was filed before this date. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
In challenging the adverse credibility determination, Berisha argues that the agency erred in refusing to allow her brother to present corroborating testimony. Because, as the government notes, Berisha failed to exhaust this issue by raising it before the BIA, we do not consider it. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-22 (2d Cir. 2007) (noting that judicially imposed exhaustion requirement, while not jurisdictional, is mandatory); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
II. Motion to Reopen
The BIA did not abuse its discretion in denying Ambra and Floridi Toma's motion to reopen because they failed to establish prima facie eligibility for asylum relief. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that BIA may deny motion to reopen if movant has not established prima facie eligibility for underlying relief sought); accord Shoo v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008). The BIA reasonably considered that the only alleged harm to Ambra and Floridi was the 2001 incident in which Ambra was purportedly hit by a car. As discussed above, the agency reasonably found that Berisha's account of this incident was not credible. Moreover, even if Ambra was hit by a car, the BIA reasonably concluded that there was insufficient evidence that this incident was anything other than an accident or that Ambra was targeted on account of a protected ground. See 8 U.S.C. § 1101(a)(42). As result, the agency did not abuse its discretion in determining that Ambra and Floridi failed to establish a prima facie case of persecution.
III. Conclusion
For the foregoing reasons, the petition for review is DENIED. As we have 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 DISMISSED 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 34.1(b).