Merita EFENDIJA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 548 F. App'x 13

SUMMARY ORDER Merita Efendija, a native of the former Yugoslavia and a citizen of Kosovo, seeks review of a April 26, 2012, decision of the BIA (1) affirming the January 12, 2010, decision of Immigration Judge (“IJ”) Mary M. Cheng, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denying her motion to reopen and remand. In re Merita Efendija, No. [ AXXX XXX XXX ] (B.I.A. Apr. 26, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City January 12, 2010).

We assume the parties’ familiarity with- the underlying facts and procedural history in this case. Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009); Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.2005). I.

Adverse Credibility Determination For applications such as Enfendija’s, governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s “demeanor, candor, or responsiveness,” the plausibility of her account, and inconsistencies in her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(l)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam).

Furthermore, for purposes of a credibility determination, “[a]n inconsistency and an omission are ... functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166. We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Id. at 167.

In this case, the agency reasonably based its adverse credibility determination on inconsistencies between Enfendija’s written statement and her testimony, including discrepancies as to her political role in Kosovo, how she identified the perpetrators of an attack against her, and her location when an explosion occurred at her father’s store.

Because the REAL ID Act permits the agency to base a credibility finding on any inconsistency, without regard to whether it goes “to the heart of the applicant’s claim,” 8 U.S.C. § 1158(b)(l)(B)(iii), the inconsistencies between Enfendija’s written statement and her testimony provide substantial evidence supporting the agency’s adverse credibility determination, particularly because they relate to her allegations of past harm. See Xiu Xia Lin, 534 F.3d at 166, 167. Furthermore, the agency reasonably rejected Enfendija’s explanations for the inconsistencies. See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Moreover, the adverse credibility determination is further supported by the IJ’s demeanor finding. Because the IJ was in the best position to observe Enfendija’s manner while testifying, we afford the demeanor finding particular deference. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006). Because the only evidence of a threat to Enfendija’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for relief. See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). II. Motion to Remand The BIA’s denial of a motion to remand is held to the substantive standard of review for motions to reopen and reconsider. Li Yong Cao, 421 F.3d at 151, 156. “The BIA has broad discretion to deny a motion to remand grounded on new evidence,” and accordingly, we review the BIA’s denial of such a motion for abuse of discretion. Id. at 156-57 (citing INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). The BIA may deny motions to remand when a prima facie case for the relief sought is not established. Id. at 156.

To establish a prima facie case, a petitioner has “the heavy burden of demonstrating that the proffered new evidence would likely alter the result in her case,” and must show “a realistic chance” of obtaining relief upon reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir.2008) (internal quotation marks omitted).

In support of remand, Enfendija submitted an affidavit in which she states that her initial declaration, written in Abanian, indicated that she was inside her father’s store when an explosion occurred, thereby addressing one of the inconsistencies in her testimony, and that she was in possession of that original declaration, although she did not submit it. Enfendija does not explain why the original declaration was previously unavailable, nor how it affects the IJ’s adverse credibility determination and establishes her prima facie eligibility for asylum.

Accordingly, the BIA did not abuse its discretion in denying Enfendija’s motion to remand. See Li Yong Cao, 421 F.3d at 156. 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).