Mair DUKA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Respondent, 356 F. App'x 497

SUMMARY ORDER Petitioner Mair Duka, a native of Yugoslavia and a citizen of Macedonia, seeks review of the February 13, 2009 order of the BIA affirming the November 29, 2006 decision of Immigration Judge (“IJ”) Sandy Horn denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mair Duka, No. [ A XXX XXX XXX ] (B.I.A. Feb. 13, 2009), aff'g No. [ A XXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 29, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

As an initial matter, Duka does not challenge the IJ’s findings that: (1) his testimony was inconsistent regarding the amount of time he was detained in 2001 while helping Kosovar refugees; (2) he gave inconsistent explanations as to why his persecutors referred to him as “dukat”; (3) his testimony was inconsistent regarding the number of times he had been detained for seven days or more; (4) his failure to include the purpose of the demonstration he attended in March 2004 in the written statement attached to his asylum application (which he later testified was to promote the establishment of an Albanian university) reflected poorly on his credibility; (5) his testimony was inconsistent regarding whether he was arrested at the demonstration itself or at his home; and (6) his testimony that he had, on one occasion, been interrogated about his membership in the various organizations that planned the demonstration was inconsistent with his written statement claiming that he was interrogated about an alleged plan to attack the local police station.

Although Duka argues generally that the IJ should have overlooked the “minor discrepancies” in his testimony, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that the asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir.2008) (quoting 8 U.S.C. § 1158(b)(l)(B)(iii)); see In re J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (noting that “the REAL ID Act no longer requires the trier of fact to find a nexus between inconsistencies and the ‘heart of the claim’ ”).

Accordingly, substantial evidence supports the IJ’s adverse credibility determination. See Shunfu, Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). Duka does challenge the IJ’s finding that, based on his demeanor, Duka appeared as if he “had memorized a very long script, approximately nine pages of factual elements” and was “unable to relate specifics when asked.” Duka contends that if he had memorized his testimony, he would not have had such difficulty recalling events and testifying to them accordingly.

However, the IJ did not find that Duka had memorized his script perfectly, but rather that he “continually reverted back to earlier testimony that he had provided to the Court giving the impression to the Court that he was unable to stay on course, stay on script, with regard to his testimony.” Nothing in the record compels a contrary conclusion, especially because we give particular deference to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Ultimately, substantial evidence supported the IJ’s adverse credibility determination.

Thus, the IJ properly denied Duka’s application for asylum, withholding of removal, and CAT relief because the only evidence that he would be persecuted or tortured depended on his credibility. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 163 (2d Cir.2006). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, 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(b).