         11-3108-ag                                                                    BIA
         Shcherbenko v. Holder                                                  Vomacka, IJ
                                                                               A089 250 256
                                                                               A089 250 257


                                 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 25th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       NATALIA SHCHERBENKO, MERVAN SULEYMAN
14       KIZGIN,
15                Petitioners,
16
17                           v.                                 11-3108-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONERS:                 H. Raymond Fasano, New York, New
25                                        York.
26
27       FOR RESPONDENT:                  Tony West, Assistant Attorney
28                                        General; Richard M. Evans, Assistant
29                                        Director; Benjamin J. Zeitlin, Trial
30                                        Attorney, Office of Immigration
31                                        Litigation, United States Department
32                                        of Justice, 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 DENIED.

 5       Petitioners Natalia Shcherbenko, a native of Kazakhstan

 6   and citizen of Russia, and her husband Mervan Suleyman

 7   Kizgin, a native and citizen of Turkey, seek review of a

 8   July 13, 2011, order of the BIA, affirming the November 13,

 9   2009, decision of Immigration Judge (“IJ”) Alan Vomacka,

10   denying their application for asylum, withholding of

11   removal, and relief under the Convention Against Torture

12   (“CAT”).     In re Natalia Shcherbenko, Mervan Suleyman Kizgin,

13   Nos. A089 250 256/257 (B.I.A. July 13, 2011), aff’g Nos.

14   A089 250 256/257 (Immig. Ct. N.Y. City Nov. 31, 2009).        We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       Under the circumstances of this case, we have reviewed

18   both the BIA’s and IJ’s opinions, including the portions of

19   the IJ’s decision not explicitly discussed by the BIA.

20   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

21   The applicable standards of review are well-established.

22   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

23   F.3d 510, 513 (2d Cir. 2009).       For an application like

                                     2
 1   Petitioners’, governed by the REAL ID Act of 2005, the

 2   agency may, considering the totality of the circumstances,

 3   base a credibility finding on an asylum applicant’s

 4   demeanor, the plausibility of her account, and

 5   inconsistencies in her statements, without regard to whether

 6   they go “to the heart of the applicant’s claim.”    8 U.S.C.

 7   § 1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec.

 8   260, 265 (B.I.A. 2007).   Analyzed under the REAL ID Act, the

 9   agency’s adverse credibility determination is supported by

10   substantial evidence.

11       In finding Shcherbenko not credible, the agency

12   reasonably relied on the omission of her August 2005

13   attackers’ identity from her asylum statement.     See 8 U.S.C.

14   § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d

15   162, 166 (2d Cir. 2008) (providing that, for purposes of

16   analyzing a credibility determination, “[a]n inconsistency

17   and an omission are . . . functionally equivalent”).     As the

18   agency noted, Shcherbenko testified that members of the

19   Russian Nationality Unity Party (“RNU”) attacked a baptism

20   ceremony in August 2005 but did not indicate that the

21   attackers were RNU members in her asylum statement.     While

22   this omission does not necessarily go to the heart of


                                   3
 1   Shcherbenko’s claim, it was nevertheless a proper basis for

 2   the agency’s adverse credibility determination.     See Xiu Xia

 3   Lin, 534 F.3d at 167 (holding that “an IJ may rely on any

 4   inconsistency or omission in making an adverse credibility

 5   determination as long as the ‘totality of the circumstances’

 6   establishes that an asylum applicant is not credible”

 7   (emphasis in original)).

 8       The IJ also reasonably relied on inconsistencies

 9   between Shcherbenko’s testimony and her friends’ and

10   pastor’s letters in finding her not credible.     See 8 U.S.C.

11   § 1158(b)(1)(B)(iii).   As the agency noted, Shcherbenko

12   testified that she and her friends Nina, Olga, and Alexis (a

13   male) were attacked in March 2007 by orthodox extremists

14   with a bicycle chain; Nina’s letter, however, failed to

15   mention the incident, Olga’s letter did not mention a

16   bicycle chain, Shcherbenko’s pastor’s letter referred only

17   to girls being present, and Maria’s letter indicated that

18   she was also present.   Although Shcherbenko argues that

19   Olga’s failure to mention the bicycle chain in the attack

20   and her pastor’s reference to only girls being present do

21   not constitute inconsistences, where, as here, the agency’s

22   inference “is tethered to the evidentiary record, we will


                                   4
 1   accord deference to the finding.”   See Siewe v. Gonzales,

 2   480 F.3d 160, 168-69 (2d Cir. 2007) (noting that “support

 3   for a contrary inference-even one more plausible or more

 4   natural-does not suggest error”).   Moreover, Shcherbenko

 5   fails to address Nina’s omission of the attack from her

 6   letter, Maria’s statement that she was present during the

 7   2007 incident, or the additional inconsistency between

 8   Shcherbenko’s testimony and her pastor’s letter regarding

 9   whether gunshots were fired, which in itself stands as a

10   valid basis for finding that the agency’s adverse

11   credibility determination is supported by substantial

12   evidence.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

13   n.1, 545 n.7 (2d Cir. 2005) (“Issues not sufficiently argued

14   in the briefs are considered waived and normally will not be

15   addressed on appeal.” (internal quotation marks omitted));

16   see also 8 U.S.C. § 1158(b)(1)(B)(iii).

17       Having found Shcherbenko not credible, the agency

18   reasonably noted that her failure to provide corroborating

19   evidence further undermined her credibility.   See 8 U.S.C.

20   § 1158(b)(1)(B)(ii) (providing that “[t]he testimony of the

21   applicant may be sufficient to sustain the applicant’s

22   burden without corroboration, but only if the applicant

23   satisfies the trier of fact that the applicant’s testimony
                                   5
 1   is credible, is persuasive, and refers to specific facts

 2   sufficient to demonstrate that the applicant is a refugee”).

 3   We have recognized that an applicant’s failure to

 4   corroborate her testimony may bear on credibility, either

 5   because the absence of particular corroborating evidence is

 6   viewed as suspicious, or because the absence of

 7   corroboration in general makes an applicant unable to

 8   rehabilitate testimony that has already been called into

 9   question.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

10   Cir. 2007) (per curiam).   Here, the agency reasonably relied

11   on Shcherbenko’s failure to present corroborating evidence

12   regarding her church attendance in the U.S and her medical

13   and dental treatments in Russia.   While Shcherbenko

14   testified that her mother was unable to obtain her dental

15   records in Russia, which were only kept for one year, the IJ

16   reasonably found her explanation unconvincing because her

17   mother’s letter made no reference to any attempt to obtain

18   the records.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

19   F.3d 315, 342 (2d Cir. 2006) (finding that the weight

20   afforded to the applicant’s evidence in immigration

21   proceedings lies largely within the discretion of the

22   agency). Cf. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

23   2005) (holding that an agency need not credit an applicant’s
                                   6
 1   explanations for inconsistencies in the record unless those

 2   explanations would compel a reasonable fact-finder to do

 3   so).

 4          Although Shcherbenko contends that the BIA erred by

 5   failing to assess whether her allegations of past

 6   mistreatment, if credible, rose to the level of persecution,

 7   the agency had no obligation to do so given the adverse

 8   credibility determination.    INS v. Bagamasbad, 429 U.S. 24,

 9   25 (1976) (“[a]s a general rule courts and agencies are not

10   required to make findings on issues the decision of which is

11   unnecessary to the results they reach”).    Lastly,

12   Shcherbenko’s argument that the agency placed excessive

13   reliance on the U.S. Department of State reports is

14   misplaced.    A review of the record does not reflect that the

15   agency relied excessively on the State Department reports or

16   ignored any contrary evidence, particularly given the IJ’s

17   extensive discussion of the evidence and explicit statement

18   that he had read through all of the country conditions

19   evidence.    See Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d

20   Cir. 2004); see also Xiao Ji Chen, 471 F.3d at 337 n.17

21   (presuming that the agency “has taken into account all of

22   the evidence before [it], unless the record compellingly

23   suggests otherwise”).
                                    7
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DENIED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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