Dyachuk v. Holder , 379 F. App'x 113 ( 2010 )

09-3236-ag
Dyachuk v. Holder
BIA
Gordon-Uruakpa, IJ
A099 683 633
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1 st day of June, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 NATALIYA DYACHUK,
14 Petitioner,
15
16 v. 09-3236-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Linda S. Wernery, Assistant
28 Director, Trish Maskew, Trial
1 Attorney, Office of Immigration
2 Litigation, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Nataliya Dyachuk, a native of the Soviet Union and
10 citizen of Ukraine, seeks review of a June 29, 2009 order of
11 the BIA, affirming the June 7, 2007 decision of Immigration
12 Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re
15 Nataliya Dyachuk, No. A099 683 633 (B.I.A. June 29, 2009),
16 aff’g No. A099 683 633 (Immig. Ct. N.Y. City June 7, 2007).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as modified by the BIA decision. See Xue Hong
21 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
22 2005). The applicable standards of review are well-
23 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
24 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
25 Substantial evidence supports the IJ’s adverse
2
1 credibility determination: (1) although Dyachuk testified
2 that the university she attended was not affiliated with the
3 Seventh Day Adventist Church, the Government submitted
4 evidence to the contrary; (2) although Dyachuk testified
5 that she was the only person at her university who practiced
6 Seventh Day Adventism, the evidence she submitted stated
7 that many children from Adventist families studied at that
8 school; and (3) although Dyachuk submitted evidence stating
9 that she was beaten many times by students, her testimony
10 and asylum application indicated that she was beaten only
11 once by students. Because the discrepancies were based on
12 specific examples in the record, the agency was entitled to
13 rely on the cumulative effect of these discrepancies to find
14 Dyachuk not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii);
15 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
16 2008).
17 Additionally, because the agency found Dyachuk not
18 credible, it was proper under the provisions of the REAL ID
19 Act for the IJ to rely on the absence of available evidence,
20 which may have corroborated her claim. See 8 U.S.C.
21 § 1158(b)(1)(B)(ii). While Dyachuk asserts that
22 corroborating evidence from the hospital was not reasonably
3
1 available, the IJ was not required to first identify the
2 particular pieces of missing, relevant evidence, and show
3 that this evidence was reasonably available to her before
4 relying on a lack of corroboration to support the adverse
5 credibility finding. See Xian Ji Chen v. U.S. Dep’t of
6 Justice, 471 F.3d 315, 341 (2d Cir. 2006).
7 Finally, the IJ reasonably relied on the absence of any
8 objective documentary evidence in rejecting Dyachuk’s claim
9 of a well-founded fear of future persecution. Indeed, the
10 IJ properly noted that the 2006 State Department
11 International Religious Freedom Report states that the
12 government sought at all levels to protect the right of
13 freedom of religion.
14 Accordingly, considering the totality of the
15 circumstances, the agency's adverse credibility
16 determination was supported by substantial evidence. See 8
17 U.S.C. § 1158(b)(1)(B)(iii). As the only evidence of
18 persecution or a threat to Dyachuk’s life or freedom
19 depended upon her credibility, the adverse credibility
20 determination in this case necessarily precludes success on
21 her claims for both asylum and withholding of removal. See
22 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4
1 Furthermore, because Dyachuk failed to challenge the IJ’s
2 denial of her CAT claim either before the BIA or this Court,
3 we deem any such argument abandoned. See Gui Yin Liu v.
4 INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
5