                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0985n.06

                                             No. 12-3791

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                    Nov 15, 2013
NERINGA VENCLAVICIUTE;                                 )                        DEBORAH S. HUNT, Clerk
DEIVIS SUBECKIS,                                       )
                                                       )
        Petitioners,                                   )
                                                       )
v.                                                     )        ON PETITION FOR REVIEW
                                                       )        FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General,                 )        BOARD OF IMMIGRATION
                                                       )        APPEALS
        Respondent.                                    )
                                                       )             OPINION




BEFORE: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*


        JANE B. STRANCH, Circuit Judge. Neringa Venclaviciute and her husband, Deivis

Subeckis, petition for review of an order of the Board of Immigration Appeals (BIA) dismissing

their appeal from an immigration judge’s (IJ) decision denying Venclaviciute’s application for

asylum and withholding of removal. Because substantial evidence supports the agency’s adverse

credibility finding, we deny Venclaviciute’s petition for review, as well as Subeckis’s, as his claims

for relief are entirely derivative of his wife’s application.

        Venclaviciute, a native and citizen of Lithuania, entered the United States on an exchange-

visitor visa on or about June 25, 1998. Venclaviciute adjusted her status and obtained a tourist visa



        *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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with authorization to remain in the United States until April 19, 1999. Venclaviciute remained in

the United States beyond that date; she subsequently gave birth to a child and married Subeckis, also

a native and citizen of Lithuania.

       On December 31, 2001, Venclaviciute filed an application for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT), including Subeckis as a

derivative beneficiary. Venclaviciute claimed that Lithuanian authorities and nationalists persecuted

her and her family because of their Jewish religion and ethnicity. The former Immigration and

Naturalization Service served Venclaviciute and Subeckis with notices to appear, charging them

with removability pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(1)(B), as aliens who remained in the United States without permission. Venclaviciute and

Subeckis admitted the factual allegations in the notices to appear, with the amendment of

Venclaviciute’s date of entry, and conceded removability as charged.

       Venclaviciute subsequently withdrew her requests for CAT protection and voluntary

departure. Following a hearing on the merits, the IJ denied Venclaviciute’s application for asylum

and withholding of removal. Noting that the REAL ID Act of 2005 did not apply to Venclaviciute’s

application, the IJ found that she lacked credibility and that her documentary corroboration fell short

of substantiating her claims. The IJ went on to find that Venclaviciute’s asylum application was

time-barred and that she otherwise failed to establish eligibility for asylum and withholding of

removal.




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       Venclaviciute and Subeckis filed a timely appeal, which the BIA dismissed. The BIA upheld

the adverse credibility finding and declined to address the IJ’s other rulings. This timely petition

for review followed.

       “In cases where the BIA has issued a separate opinion, instead of summarily affirming the

IJ’s decision, we review the BIA’s decision as the final agency determination.” Dieng v. Holder,

698 F.3d 866, 871 (6th Cir. 2012). The agency’s adverse credibility finding is a finding of fact

reviewed for substantial evidence and is “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see El-Moussa v. Holder, 569

F.3d 250, 255–56 (6th Cir. 2009). Because Venclaviciute filed her application prior to the effective

date of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, the agency’s adverse

credibility determination “‘must be supported by specific reasons and must be based upon issues that

go to the heart of the applicant’s claim,’” Abdurakhmanov v. Holder, 666 F.3d 978, 982 & n.3 (6th

Cir. 2012) (quoting Ceraj v. Mukasey, 511 F.3d 583, 591 (6th Cir. 2007)), rather than the lowered

standard under the Act.

       The BIA first noted inconsistencies in Venclaviciute’s testimony about her alleged

persecution in Lithuania. Venclaviciute testified that her classmates made fun of her when she was

a child and made comments like, “kill this little Jew.” Asked how the other children knew that she

was Jewish, Venclaviciute responded that they probably saw her family going to synagogue and

celebrating holidays. When the government’s attorney pointed out that Lithuania was under Soviet

rule at the time and that religious practices were hidden, Venclaviciute testified that she did not

know how her classmates knew that she was Jewish. The BIA drew a negative inference from this.

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Venclaviciute also testified on direct examination that she was attacked in March 1998 by three men

who called her names, smashed her head into a wall, kicked her in the stomach, and spit on her. She

subsequently testified on cross examination that she was not kicked during this assault.

       Venclaviciute’s testimony as to her childhood experience does not support the agency’s

adverse credibility finding, but the BIA’s assessment of her telling of the March 1998 assault does.

Venclaviciute explained that while religion was prohibited, some Lithuanian Jews engaged in

religious practices surreptitiously in one another’s homes and that her father took her to a synagogue

in something like the basement of a house. Because she lived close to other children at her school,

“they probably saw us going to synagogue and . . . celebrating holidays.” Venclaviciute’s

explanation was fully consistent with the government attorney’s point that religion was not openly

observed, so no negative inference could fairly be drawn from it. With respect to the March 1998

assault, however, Venclaviciute attempted to pin the discrepancy as to whether or not she was kicked

on the fact that “it was a long time ago.” While 12 years is a long time to remember the particular

manner of a physical assault, the discrepancy occurred in a much shorter time period, between

Venclaviciute’s testimony on direct examination stating that she was kicked and her admission on

cross-examination that she was not. While the first inconsistency the BIA cited is not grounds for

an adverse credibility determination, Venclaviciute’s contradictory testimony about the details of

the assault on her lends support to the agency’s adverse credibility finding.

       The BIA next addressed the omissions from Venclaviciute’s affidavit submitted in support

of her application. Venclaviciute testified that after three women beat her up at a bus stop in

February 1996, she and her parents went to the police station to report the incident. The BIA noted

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that Venclaviciute’s affidavit, however, failed to mention any police report following this incident.

The agency also observed that Venclaviciute’s affidavit also failed to mention any assault on her

father, when she testified at the hearing that her father was beaten up once when she was a teenager.

       “Like affirmative inconsistencies, omissions may form the basis of an adverse credibility

determination, provided that they are substantially related to the asylum claim.” Liti v. Gonzales,

411 F.3d 631, 637 (6th Cir. 2005). But “omissions in an application that do not directly contradict

an applicant’s subsequent testimony before the IJ may not form the basis of an adverse credibility

finding.” Sinani v. Holder, 418 F. App’x 475, 479 (6th Cir. 2011) (citing Liti, 411 F.3d at 637–38).

Venclaviciute’s asylum application may be silent as to whether she reported the bus-stop assault to

the police, but this silence does not “directly contradict” her subsequent testimony that she did report

it. In a similar vein, Venclaviciute’s failure to mention the assault on her father does not support an

adverse credibility determination because it is not inconsistent with any subsequent testimony.

Moreover, we have previously rejected the BIA’s “underlying rationale” that asylum applicants are

“required to provide an exhaustive, detailed list” of the instances or activities supporting their claim

to asylum or withholding. Liti, 411 F.3d at 638. “The purpose of holding a removal hearing is not

simply to reiterate the statements made in the asylum application, but rather to allow an alien ‘to

present evidence on the alien’s own behalf’ including to elaborate on the generalized claims made

in the application itself.” Id. at 639 (quoting 8 U.S.C. § 1229a(b)(4)(B)). Because the statements

Venclaviciute made in her asylum application were not inconsistent with her subsequent hearing

testimony, the BIA’s adverse credibility finding is not supported by this evidence.




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       The BIA further noted Venclaviciute’s shifting explanations for her failure to file her asylum

application within one year of her arrival in the United States.         In her initial application,

Venclaviciute provided the following explanation: “I had recently found out about events of severe

persecution that happened to members of my family due to our Jewish religion and of threats

directed toward me and my family.” In support of this, Venclaviciute elaborated at the hearing that

her brother’s car window had been smashed and a note in German that read “Jew must die” was left

inside the car. She also told that her other brother was not selected for the Lithuanian national

basketball team because of his religious faith.

       But Venclaviciute’s testimony at the hearing was different. There, Venclaviciute explained

that she did not file her application by June 1999 because she “didn’t know what to do” and “was

very weak,” relating that she had been confined to bed rest because of pregnancy complications at

that time. The trouble for Venclaviciute is that her testimony indicates she was working during

some part of time that she was purportedly on bed rest. Although the hearing transcript suggests that

Venclaviciute may have sown confusion by misunderstanding the IJ’s question,1 an error she




       1
        Venclaviciute had the following exchange with the IJ:

       Q:   And when did you work for [your employer]?
       A:   In 1998, it was Summer.
       Q:   Summer of 1998?
       A:   In 1999 October.
       Q:   From the Summer of 1998 to October of ‘99?
       A:   Yes.

See A.R. 305.

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corrected moments later,2 we nevertheless conclude the BIA was justified in determining that

Venclaviciute testified inconsistently as to her failure to timely file her asylum application.

       Finally, the BIA determined that Venclaviciute failed to provide sufficient corroborating

evidence to support her claims. Where an applicant’s testimony could be viewed as incredible, the

failure to provide corroborating evidence may provide further support for an adverse credibility

determination. See Zhao v. Holder, 569 F.3d 238, 248–49 (6th Cir. 2009). Venclaviciute’s father,

who lives with her in the United States and is healthy enough to work in a pizzeria, neither testified

nor provided an affidavit in support of her claims. Nor did Venclaviciute’s two brothers living in

Lithuania provide a corroborating statement. Venclaviciute’s mother submitted an affidavit, but it

only addressed a May 1998 assault and mentioned no other incidents of alleged persecution.

Venclaviciute also failed to provide any medical records regarding complications related to her 1999

pregnancy, despite having several years to obtain them.

       In sum, although certain aspects of the BIA’s adverse credibility determination ran afoul of

the law in this circuit, the record does not compel a contrary credibility determination. See id. at


       2
       Almost immediately following her affirmation that she worked until October 1999,
Venclaviciute said the following:

       Q: So you were working while you were pregnant with your first child?
       A: No.
       Q: Your first child was born December of 1999?
       A: Yes.
       Q: And you told me you worked from Summer of ‘98 to October of 1999.
       A: Excuse me, I made mistake, I was working until 1998 October.

See A.R. 306.


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249. Given the inconsistencies in Venclaviciute’s testimony about her alleged persecution in

Lithuania, as well as her undisputed failure to corroborate her claims, Venclaviciute has “failed to

satisfy the threshold showing of credibility”; thus, she cannot demonstrate that she is entitled to

asylum or withholding of removal. Id. As a result, we deny her petition for review. And because

Subeckis’s petition is derivative of hers, we deny his petition as well.




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       JULIA SMITH GIBBONS, Circuit Judge, concurring. I agree with the result in this case

but am unable to endorse the majority’s reading of our unpublished, non-precedential case law. The

majority uses language from our opinion in Sinani v. Holder, 418 F. App’x 475 (6th Cir. 2011), to

craft a blanket rule that omissions from an asylum application can never form the basis for an

adverse credibility determination unless the omission “directly contradict[s] an applicant’s

subsequent testimony.” The creation of this rule overstates the holding of Sinani and, more

importantly, of Liti v. Gonzales, 411 F.3d 631 (6th Cir. 2005), on which Sinani purportedly relies.

       Liti is directed to improper credibility determinations based on testimony that is more

specific than the brief statements typically contained in an asylum application. The result of Liti

turns on the substantiality of the omissions. Id. at 637. Liti says nothing about whether testimony

directly contracts an omission. In fact, common sense tells us that an omission cannot be in direct

contraction with a later affirmative statement. And Liti recognizes that of course, “omissions may

form the basis of an adverse credibility determination.” Id.

       Although Sinani does contain the language cited by the majority and purports to draw this

conclusion from Liti, what was at issue in Sinani was Sinani’s use of the more specific word “rape”

in subsequent statements while the first version of her asylum application referred to “physical

abuse.” As the Sinani panel correctly observed, there was no basis for an inconsistency finding

because “physical abuse” does not exclude “rape.” 418 F. App’x at 479.

       In short, the language from Sinani on which the majority relies is not found in Liti, is not the

basis for decision in Sinani, and is inconsistent with the reality that omissions do not “directly




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contradict” affirmative statements. As we have noted in a published opinion, Liti is appropriately

characterized as a warning to “exercise[] extra care in evaluating omissions from asylum

applications” given the “difficulties asylum seekers face in providing exhaustive accounts in asylum

applications.” Shkabari v. Gonzales, 427 F.3d 324, 329 (6th Cir. 2005).




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