09 -32 36 -ag

Dyachuk v. Holder BIA Gordon-Ur

uak pa,IJ A099 683 633 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY 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 day of June, two thousand ten. st 5 6 PRESENT: 7 JON O. NEWMAN, 8 ROBERT D. SACK, 9 REENA RAGGI, 10 C ircuit 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, Trial2 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 1 0 citizen of Ukraine, seeks review of a June 29, 2009 order of 1 1 the BIA, affirming the June 7, 2007 decision of Immigration 1 2 Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which denied her 1 3 application for asylum, withholding of removal, and relief 1 4 under the Convention Against Torture (“CAT”). In re 15 Nataliya Dyachuk , No. A099 683 633 (B.I.A. June 29, 2009), 16 aff’gNo. A099 683 633 (Immig. Ct. N.Y. City June 7, 2007). 1 7 We assume the parties’ familiarity with the underlying facts 1 8 and procedural history in this case. 1 9 Under the circumstances of this case, we review the 2 0 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. 2 2 2005). The applicable standards of review are well2 3 established. See8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 24 Holder , 562 F.3d 510, 513 (2d Cir. 2009). 2 5 Substantial evidence supports the IJ’s adverse3 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 1 0 and asylum application indicated that she was beaten only 1 1 once by students. Because the discrepancies were based on 1 2 specific examples in the record, the agency was entitled to 1 3 rely on the cumulative effect of these discrepancies to find 1 4 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. 1 6 2008). 1 7 Additionally, because the agency found Dyachuk not 1 8 credible, it was proper under the provisions of the REAL ID 1 9 Act for the IJ to rely on the absence of available evidence, 2 0 which may have corroborated her claim. See8 U.S.C. 2 1 § 1158(b)(1)(B)(ii). While Dyachuk asserts that 2 2 corroborating evidence from the hospital was not reasonably4 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 Justice , 471 F.3d 315, 341 (2d Cir. 2006). 6 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 1 0 IJ properly noted that the 2006 State Department 1 1 International Religious Freedom Report states that the 1 2 government sought at all levels to protect the right of freedom of religion. 13 1 4 Accordingly, considering the totality of the 1 5 circumstances, the agency's adverse credibility 1 6 determination was supported by substantial evidence. See8 U.S.C. § 1158(b)(1)(B)(iii). 1 7 As the only evidence of 1 8 persecution or a threat to Dyachuk’s life or freedom 1 9 depended upon her credibility, the adverse credibility 2 0 determination in this case necessarily precludes success on 2 1 her claims for both asylum and withholding of removal. See 22 Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006).5 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).

For the foregoing reasons, the petition for review is 5 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 1 0 oral argument in this petition is DENIED in accordance with 1 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 2 Circuit Local Rule 34.1(b). 1 3 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 14 15