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 day of June, two thousand ten. st

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
2

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 well23 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
3

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
4

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). 
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). 

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