         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
     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 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
5
6
7




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