    11-2211
    Nyonyo v. Holder
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A079 716 474
                        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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 6th day of January, two thousand fourteen.

    PRESENT:
             JOHN M. WALKER, JR.,
             ROSEMARY S. POOLER,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    SOLOMON NYONYO,
             Petitioner,

                       v.                                  11-2211
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Solomon Nyonyo, pro se, Queens,
                                  NY.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Ernesto H. Molina, Jr.,
                                  Assistant Director; Sheri R. Glaser,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Solomon Nyonyo, a native and citizen of

Kenya, seeks review of an April 27, 2011, order of the BIA,

affirming a February 26, 2009, decision of Immigration Judge

(“IJ”) Javier Balasquide, which pretermitted his application

for asylum and denied his applications for withholding of

removal and relief under the Convention Against Torture

(“CAT”).     In re Solomon Nyonyo, No. A079 716 474 (B.I.A.

Apr. 27, 2011), aff’g No. A079 716 474 (Immig. Ct. N.Y. City

Feb. 26, 2009).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA.     See Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

standards of review are well-established.     See 8 U.S.C.

§ 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009).

    In finding Nyonyo not credible, the agency reasonably

relied on the omission of his prior arrests from his

application to adjust status and inconsistencies in the

                                2
record concerning his knowledge of his ex-wife’s whereabouts

and his hiding in Kenya.   See 8 U.S.C. § 1158(b)(1)(B)(iii);

see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d

Cir. 2008) (providing that, for purposes of analyzing a

credibility determination, “[a]n inconsistency and an

omission are . . . functionally equivalent”).   Although

Nyonyo argues, in reliance on pre-REAL ID Act case law, that

the “mere omission of details” and minor inconsistencies are

“insufficient to uphold an adverse credibility finding,” for

applications like Nyonyo’s, governed by the REAL ID Act, the

agency may base an adverse credibility determination on

inconsistencies and omissions in the record without regard

to whether they go “to the heart of the applicant’s claim.”

See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

F.3d at 167; Matter of J-Y-C-, 24 I. & N. Dec. 260, 265

(B.I.A. 2007).   Moreover, while Nyonyo argues that

corroborative evidence was not reasonably available because

he “has no power to force individuals to provide him

affidavits,” the agency based its adverse credibility

determination on inconsistencies and omissions in the record

and not on Nyonyo’s failure to provide reasonably available

corroborating evidence.


                              3
    Nyonyo does not challenge the agency’s pretermission of

his asylum application as untimely.

    In light of the agency’s adverse credibility

determination, it did not err in denying Nyonyo’s

applications for relief.

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             4
