12-4999
Stasyshyn v. Holder
BIA
Vomacka, IJ
A088 935 745
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
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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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 VIKTORIYA STASYSHYN,
14 Petitioner,
15
16 v. 12-4999
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Daniel D. Estrin, Sirota &
24 Associates, P.C., Brooklyn, N.Y.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Allen W. Hausman, Senior
28 Litigation Counsel; Nancy E.
29 Friedman, Senior Litigation Counsel,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Viktoriya Stasyshyn, a native of the Soviet Union and a
6 citizen of Ukraine, seeks review of a December 11, 2012,
7 decision of the BIA affirming the April 27, 2011, decision
8 of an Immigration Judge (“IJ”), which denied her application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Stasyshyn, No.
11 A088 935 745 (B.I.A. Dec. 11, 2012), aff’g No. A088 935 745
12 (Immig. Ct. N.Y. City Apr. 27, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA. See Yang v. U.S.
17 Dep't Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 I. Asylum
22 We dismiss the petition to the extent Stasyshyn
23 challenges the pretermission of her asylum application as
2
1 untimely. We generally lack jurisdiction to review the
2 agency’s finding that an asylum application was untimely
3 under 8 U.S.C. § 1158(a)(2)(B),(a)(3). Although we retain
4 jurisdiction to review “constitutional claims or questions
5 of law,” 8 U.S.C. § 1252(a)(2)(D), Stasyshyn challenges only
6 the IJ’s factual findings as to the credibility of her
7 testimony regarding her reasons for waiting more than a year
8 after her arrival in the United States to file for asylum.
9 We are therefore without jurisdiction to review Stasyshyn’s
10 challenge to the agency’s finding that her asylum
11 application was untimely.
12 II. Withholding of Removal and CAT Relief
13 We also deny the petition as to withholding of removal
14 and CAT relief because the IJ’s adverse credibility
15 determination is supported by substantial evidence. For
16 applications subject to the REAL ID Act of 2005, such as
17 Stasyshyn’s, the agency, “considering the totality of the
18 circumstances,” may base a credibility finding on any
19 inconsistency, including ones that do not go to the heart of
20 the claim. 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
21 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
22
3
1 The agency reasonably based its adverse credibility
2 determination on several inconsistencies between Stasyshyn’s
3 written application and oral testimony. Stasyshyn does not
4 contest that these inconsistencies exist in the record;
5 instead, she argues that they are insubstantial. However,
6 the agency relied on inconsistencies regarding the main
7 incidents of alleged persecution—particularly Stasyshyn’s
8 changing story of her detention—and an omission from her
9 application of the main evidence of her fear of future harm,
10 threats to her mother and children in Ukraine.
11 Given these inconsistencies, the “totality of the
12 circumstances” supports the agency’s adverse credibility
13 determination: inconsistencies between her written
14 application and testimony go to the heart of her allegations
15 that she was subjected to past persecution and will likely
16 be persecuted in the future. See Xiu Xia Lin, 534 F.3d at
17 167. Stasyshyn’s evidence regarding country conditions,
18 which she claims corroborates her statements, does not
19 resolve the inconsistencies in her own testimony, and thus
20 provides no basis to overturn the adverse credibility
21 determination.
22
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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