                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0671n.06

                                           No. 09-3895

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                 Nov 02, 2010
                                                                                LEONARD GREEN, Clerk

OLGA SHIPILOVA,                                          )
                                                         )
       Petitioner,                                       )       ON PETITION FOR REVIEW
                                                         )       FROM THE BOARD OF
               v.                                        )       IMMIGRATION APPEALS
                                                         )
ERIC H. HOLDER, JR., Attorney General of the             )
United States,                                           )
                                                         )
       Respondent.                                       )
                                                         )



BEFORE: GILMAN and GRIFFIN, Circuit Judges; and ROSE, District Judge.*

       GRIFFIN, Circuit Judge.

       Olga Shipilova, a native and citizen of Russia, petitions for review of an order of the Board

of Immigration Appeals (“BIA” or “Board”) affirming an immigration judge’s (“IJ”) denial of her

application for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”).1 Shipilova argues that the BIA erred by adopting and affirming: (1) the IJ’s

finding that she was not credible; and (2) the IJ’s finding that her asylum claim was insufficiently

corroborated. Because each of these arguments lack merit, we deny the petition for review.

       *
        The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.
       1
        United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. GAOR 39th Sess., Supp. No.
51 at 197, U.N. Doc. A/39/51 (1984); see also implementing regulations at 8 C.F.R. § 208.18.
No. 09-3895
Shipilova v. Holder


                                                   I.

        Shipilova entered the United States on July 2, 2002, as an exchange visitor with authorization

to remain in the country for a temporary period not to exceed October 10, 2002. On February 24,

2003, Shipilova applied for asylum, withholding of removal, and protection under the CAT. The

government subsequently served Shipilova with a notice to appear (“NTA”), charging her with

removability under § 237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1227(a)(1)(B), for remaining in the United States beyond October 10, 2002, without authorization.

        In her asylum application, Shipilova asserted that she would be subject to persecution

because of her Baptist religion if she returned to Russia. She explained that, after she “started

attending [religious] services[,]” she was involved in “numerous conflicts and was beaten up a

number of times due to [her] religious [adherence]” by “Russian pro-fascists, Cossac[k]s – special

para-military group of population that persecute everyone who is not Orthodox and fanatics of the

Orthodox Christian Denomination . . . .” Moreover, Shipilova indicated that “persecutions of our

religion is traditional in Russia” and that “there is no hope that it will be stopped and the government

does nothing to stop it.”

        Shipilova also included a personal statement with her asylum application further describing

her background. She explained that like “most Soviets” she was raised an atheist. However, after

her father died, she became depressed and “became close” to her paternal grandparents who

introduced her to the Baptist faith. Shipilova indicated that she formally joined the Baptist

congregation in October 2000.


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       Moreover, Shipilova recounted five incidents of religious persecution that she allegedly

experienced while in Russia:

       On November 5, 2001 I was attacked while professing [the] word of G-d in the
       streets of Krasnodar. I was approached by Cossacks, the paramilitary mighty
       organization based exactly in the area where I lived in Russia. They took all the
       literature and beat me up by their traditional weapon: whips. I went to the local
       police and tried to file a report but [was] rejected by the police officer who told [me]
       that police could do nothing to prevent Baptists from the attacks or punish the
       attackers because the Cossacks are very powerful and [the] police [have] no strength
       to fight them.

       On June 1, [2001] I was [on] the bus and started talking about G-d with another
       woman. Skinheads who were [on] the bus . . . overheard what we were talking about.
       The woman I talked to and I were beaten up and thrown outside by skinheads. We
       went to the nearest police office and were told that [the] police would not [be] able
       to help us.

       On September 9, 2001 I was in the village where my grandparents live and went to
       the church with them. We were stoned while leaving the church. The attackers were
       skinheads and the other villagers were supporting them. I and [a] few other young
       church attendants ran to the local police office. The officer told us that he could not
       help because he is alone. My grandparents complained to the higher authorities but
       were told that it was useless to complain because the religion is considered non-
       traditional for Russia.

       On February 12, 2002 I was beaten up while distributing literature on the bus stop.
       I was approached by [a] police officer who confiscated the literature in spite [of] the
       fact that our church had permission to stay at the place. When I told the officers that
       I was legally distributing the literature there I was beaten up. I complained to the
       pastor and he contacted authorities but the chief of police told [him] that [the]
       officer[s] who are responsible for the area know better what to do and he did not care
       about permits. The pastor called [a] lawyer but [the] lawyer told [him] that it was
       practically impossible to bring police to [] justice.

       On March 4, 2000 I was attacked in the country with [my] sister in Christ . . . . This
       is the most terrifying incident I had and it is extremely difficult for me to write. . . .
       Her and me were attacked by skinheads and extremely abused. We were saved by
       the people who lived [] there and who took us from the trees.

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       On March 20, 2003, an asylum officer interviewed Shipilova regarding her asylum claim.

At that interview, she was accompanied by an interpreter that she found through a friend. The

interview was not recorded or transcribed, but the asylum officer prepared a summary of the

meeting.2 In his summary, the asylum officer stated that he had “serious doubts” as to Shipilova’s

credibility. Specifically, he noted that:

       The applicant could not provide consistent, detailed information about [her] overall
       claim. She was internally inconsistent and inconsistent with her affidavit in that she
       testified that it was her father’s death in 1999 that prompted her to join the Baptist
       Church upon her return from her grandparent’s home in October 1999. She,
       however, also testified that it was in October 2000 when she joined the church.
       When asked to clarify the inconsistency, she indicated that it could have merely been
       a mistake. Her response is not seen as reasonable in that she clearly indicated that
       it was her father’s death in 1999 that so affected her and caused her to join the church
       immediately following her return from her grandparents. However, she clearly
       indicates in her affidavit that she joined the church in 2000. This inconsistency is
       seen as material as it sets the tone for her overall claim of being a Baptist and thus
       suffering harm because of her religion.

       In addition, the asylum officer found that Shipilova’s testimony regarding her five incidents

of alleged religious persecution was not detailed and instead seemed “rushed.” When asked to

clarify or add detail, Shipilova “would repeatedly say, ‘all Baptists are treated with such contempt.’”

Indeed, when asked to provide even basic details, like the name of her church, the asylum officer

noted that Shipilova “struggled” and that her responses were “again . . . lacking in consistent detail

to be deemed credible.”



       2
        The record also contains the asylum officer’s handwritten notes of that meeting.
Importantly, those notes indicate that Shipilova stated that her father died in 1999 and that the
incident in which she was tied to a tree occurred in March 2002.

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       The asylum officer further found Shipilova’s “testimony about her time with the church” to

be “not credible in that she did not provide logical, consistent, and detailed testimony.” He thought

it “logically inconsistent” that Shipilova, “as a newcomer to the faith, would be tasked with

‘recruiting’ people only weeks after [she was] baptized” and noted that Shipilova was unable to

explain how this was possible. Due to his credibility findings, the asylum officer concluded that

Shipilova had failed to meet her burden of establishing eligibility for asylum.

       On February 27, 2007, Shipilova submitted an updated, unsigned personal statement, which

largely recapped the incidents in her first statement, while adding new details, but omitting dates

concerning those incidents. In her updated statement, she indicated that she joined the Baptist

congregation in October 2001, rather than in October 2000, as indicated in her original personal

statement. Shipilova also recounted a time when the dean of her university called her to his office

to reprimand her for talking about God, and then deprived her of her monthly allowance as

punishment. Furthermore, Shipilova indicated that a girl who used to be her friend refused to talk

to her because she was a Baptist and spit in her face.

       At her removal hearing, Shipilova testified that she came to the United States because she

wanted to express her belief in her faith. Shipilova indicated that she joined the Russian Baptist

church in October 2001 when she was twenty-two. She first stated that she was baptized in “2002,”

and then said, “I apologize I was baptized in May 11, 2003[.]” When asked again on what date she

was baptized, Shipilova responded that she was baptized on “May 11, 2001[,]” and then confirmed

it actually occurred on “May 11, 2002[.]”


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       The government’s attorney asked Shipilova several questions, beginning with what year her

father died. Shipilova responded that he died on August 18, 1998, when she would have been

eighteen years old.3 When asked why she told the asylum officer that her father died in August of

1999, Shipilova stated that she did not have a professional interpreter at the time of the interview,

but instead brought an interpreter based on a friend’s recommendation and that she was not confident

in his translation abilities. Next, Shipilova reconfirmed that she joined the Baptist church in October

2001. She said that her original personal statement indicated she joined in October 2000 because

she was thinking of joining then and attended church “sometimes.”

       Shipilova was unable to provide dates or supporting documents for the majority of the

incidents of harassment she reported in her asylum application. When asked to recount the first

incident that happened to her, Shipilova stated that “I’m not very confident about dates because it

was a long time ago . . . .” Shipilova was also asked to provide the date of the incident in which she

claims she was harassed by a police officer at a bus stop, to which she replied, “[i]t’s been so many

times because it’s not only one day.” When asked if she remembered what year the incident

occurred, she stated that she was “not confident [of] the dates because I have a lot of examples and

cases and it’s very harmful and very stressful . . . .” With regard to the incident where Shipilova was

tied to a tree, Shipilova indicated that it happened in April or May of 2000, which would have been

before she joined the church in October of 2001 or even thought of joining the church in October of




       3
           Shipilova was born on September 17, 1979.

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2000. Finally, Shipilova testified that she went to the doctor “after each incident” but that they did

not give her medical reports that she could provide to the court.4

        On March 28, 2007, the IJ denied Shipilova’s request for asylum, withholding of removal,

and protection under the CAT. The IJ found that Shipilova was not credible due to her “inconsistent

and vague” testimony regarding the date her father died, the date she became a Baptist, and several

of the incidents in which she was allegedly persecuted for her Baptist beliefs. The IJ also opined that

Shipilova’s demeanor was unconvincing in light of her “non-responsive” testimony, which revealed

evidentiary gaps further undermining her credibility. In addition, the IJ found that Shipilova lacked

corroboration for her claims. On July 2, 2009, the Board affirmed the IJ’s denial of Shipilova’s

request for relief.5

        Shipilova timely petitions for review.




        4
         However, Shipilova also testified that she did not receive medical treatment for her back
injury after the church stoning incident. It is possible that she sought treatment, but did not receive
treatment.
        5
         The Board also noted that, on appeal, Shipilova submitted several new documents, including
an extract of her medical records from a hospital in Russia, letters from her pastor and fellow church
members in this country, a psychological report, and country conditions for Russia. The Board
explained that it considered the additional evidence submitted on appeal only as a possible basis for
remand because the Board is an appellate body whose function is to review, not to create, a record.
It then concluded that the evidence was not sufficient to show that Shipilova had made a prima facie
case for the relief requested. In so doing, the Board noted that Shipilova failed to explain why her
recently submitted evidence could not have been produced at the time of her hearing before the IJ.


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                                                  II.

       “When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as

supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th

Cir. 2009). We “directly review[] the decision of the IJ while considering the additional comment

made by the BIA.” Id. (internal quotation marks and citation omitted).

       We review questions of law de novo and factual findings under the substantial evidence

standard. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “Factual findings are reviewed under

a substantial evidence standard in which we uphold a BIA determination as long as it is supported

by reasonable, substantial, and probative evidence on the record considered as a whole” and are

“conclusive” unless “any reasonable adjudicator would be compelled to conclude to the contrary[.]”

Zhao, 569 F.3d at 247 (internal quotation marks and citation omitted).

       Asylum may be granted to an alien who qualifies as a “refugee,” a term defined as one “who

is unable or unwilling to return to . . . [her home country] because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a particular social group,

or political opinion[.]” 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). An applicant for asylum bears

the burden of demonstrating that “persecution is a reasonable possibility” if she returned to her

country of origin. Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994) (internal quotation marks and

citation omitted). An applicant is not required to demonstrate that she will probably be persecuted

if returned because “[o]ne can certainly have a well-founded fear of an event happening when there

is less than a 50% chance of the occurrence taking place.” INS v. Cardoza-Fonseca, 480 U.S. 421,


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431 (1987). The applicant’s testimony, if deemed credible, may be sufficient to sustain her burden

of proof without corroboration. 8 C.F.R. § 1208.13(a).

       Even if not entitled to asylum, an alien may secure withholding of removal if she can show

that her “life or freedom would be threatened in that country [to which she would be sent] because

of the alien’s race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A); accord 8 C.F.R. § 208.16(b). The petitioner must establish a

“clear probability of persecution[.]” INS v. Stevic, 467 U.S. 407, 413 (1984). To meet this standard,

the applicant must demonstrate that “it is more likely than not” she will be persecuted upon her

return. 8 C.F.R. § 1208.16(b)(2).

       Unlike an application for asylum, however, a grant of an alien’s application for
       withholding is not a basis for adjustment to legal permanent resident status, family
       members are not granted derivative status, and it only prohibits removal of the
       petitioner to the country of risk, but does not prohibit removal to a non-risk country.
       Furthermore, a greater quantum of proof is required as to the likelihood of
       persecution in the country of risk in order to establish eligibility for withholding. In
       other words, the courts consider the same factors to determine eligibility for both
       asylum and withholding, but in the case of withholding, a higher probability of
       persecution is required.

Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003).

       To be eligible for CAT protection, the applicant must “establish that it is more likely than

not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §

1208.16(c)(2); see Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2001) (defining and discussing “torture”).

We will uphold the BIA’s decision concerning CAT protection unless it is “manifestly contrary to

the law[.]” Ali, 237 F.3d at 596 (internal quotation marks and citation omitted). “Thus, the BIA’s


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determination should be upheld unless evidence not only supports a contrary conclusion, but indeed

compels it.” Zhao, 569 F.3d at 247 (internal quotation marks and citation omitted).

                                               III.

       Shipilova argues that none of the alleged inconsistencies relied on by the BIA and IJ could

be viewed as attempts to enhance her claims of persecution and many should be seen merely as

difficulties in remembering the exact dates of events that occurred years ago. Moreover, Shipilova

contends that the BIA and IJ erred in relying on the unverified notes of the asylum officer in

assessing her credibility.6 Finally, Shipilova argues that the BIA and IJ erred in finding that her




       6
        As an initial matter, the BIA did not err in affirming the IJ’s adverse credibility
determination, which was based in part on the record of the asylum interview. The Second Circuit
accurately described the BIA’s standards in this regard when it stated:

       While the record of an asylum interview is more reliable when it describes the
       specific questions asked or records the interview verbatim, an interview record even
       without such assurances of reliability nevertheless meets the minimum standard, and
       it may be relied on as a basis for an adverse credibility determination as long as it
       contains a “meaningful, clear, and reliable summary of the statements made by [the
       applicant] at the interview.” See Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,
       631-33 (2d Cir. 2006) (quoting Matter of S-S-, 21 I. & N. Dec. 121 (BIA 1995))
       (internal quotations omitted).

Kangyi Wen v. Holder, 343 F. App’x 650, 651 (2d Cir. 2009) (unpublished).

        We have reviewed the asylum officer’s assessment and the handwritten notes appended to
it. The assessment memorandum is typed and summarizes the interview and the asylum officer’s
findings, including his conclusion that Shipilova was not credible. The handwritten notes appear to
track a question and answer format. Thus, it was not error for the IJ to consider these notes and
determine that Shipilova was not credible because her personal statements and subsequent testimony
were inconsistent with her interview with the asylum officer.
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No. 09-3895
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asylum claim was insufficiently corroborated. We disagree and affirm the BIA’s denial of

Shipilova’s application for asylum, withholding of removal, and protection under the CAT.

       “[T]he IJ’s determination of [Shipilova’s] credibility is reviewed under the highly deferential

substantial evidence standard, and is reversed only if any reasonable adjudicator would be compelled

to conclude to the contrary.” Bah v. Gonzales, 462 F.3d 637, 640 (6th Cir. 2006) (citation and

internal quotation marks omitted). Because Shipilova’s asylum application preceded the enactment

of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, the IJ’s adverse credibility

determination “‘must be supported by specific reasons [and] . . . must be based on issues that go to

the heart of the applicant’s claim.’”7 Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005) (quoting

Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)). Discrepancies have no bearing on an applicant’s

credibility unless they serve to enhance the applicant’s claim of persecution. Sylla, 388 F.3d at 926.

Speculation and conjecture provide inadequate bases for an adverse credibility determination, which

must instead be supported by substantial evidence. Liti, 411 F.3d at 637.

       In the present case, both the IJ and BIA chronicled numerous discrepancies in the evidence.

Specifically, they noted that Shipilova was inconsistent as to: (1) when her father died; (2) when she

subsequently joined a Baptist church in Russia; (3) when her literature was taken, and she was beaten

and cursed at while professing the word of God in the streets; (4) when her first encounter with

Cossacks occurred; (5) when skinheads assaulted her on a bus for discussing her religion with a


       7
        The REAL ID Act modified the standard governing credibility determinations and now
provides that such findings should be “based on the ‘totality of the circumstances’ and take into
account ‘all relevant factors.’” El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009) (quoting 8
U.S.C. § 1158(b)(1)(B)(iii)).
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fellow passenger and pushed them out of the bus resulting in bruises all over her body; (6) when and

how many times a police officer confiscated the religious materials that she was distributing at a bus

stop and beat her; (7) when she and her grandparents were stoned by skinheads as they were leaving

church; (8) whether she sought any medical treatment for her injured back; and (9) when she was tied

to a tree.

        These several examples go to the heart of Shipilova’s claim and demonstrate the numerous

inconsistencies between Shipilova’s testimony, asylum interview, and written statements. See Singh

v. Ashcroft, 398 F.3d 396, 402-03 (6th Cir. 2005) (concluding that adverse credibility finding was

supported by key inconsistencies between an asylum application and alien’s testimony where IJ

rejected alien’s explanation for inconsistencies); Kaba v. Mukasey, 546 F.3d 741, 749-50 (6th Cir.

2008) (stating that the complete lack of specificity in an application justifies the IJ’s skepticism

about the validity of those claims). “Undoubtedly, these are the kinds of traumatic events that an

individual may forget the exact details of; at the same time, however, these are significant and likely

memorable events. Such a wide discrepancy in testimony . . . demonstrates that there was substantial

evidence supporting the IJ’s adverse credibility finding.”8 Berri v. Gonzales, 468 F.3d 390, 395 (6th

Cir. 2006). Because the IJ was not unreasonable in finding that Shipilova failed to explain

adequately the apparent inconsistencies in her testimony regarding events central to her claim of past


        8
         Moreover, the IJ properly found that Shipilova’s demeanor was not convincing. Here,
contrary to Shipilova’s assertions, the IJ specifically explained that Shipilova’s testimony was at
times non-responsive to the question asked and that she occasionally had great difficulty answering.
“The IJ is in the best position to determine credibility based on the demeanor of the witness and the
presentation of testimony.” See Diallo v. Holder, 312 F. App’x 790, 801 (6th Cir. 2009)
(unpublished).
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persecution, we cannot say that, based on the record before us, any reasonable adjudicator would be

required to find her credible.

       Given the IJ’s finding that Shipilova was not credible, he properly determined that Shipilova

was obligated to prove her claims with objective corroboration. See In re Dass, 20 I. & N. Dec. 120,

125-26 (BIA 1989). “Where the alien’s testimony could be viewed as incredible, inconsistent, or

incoherent, a fact-finder may reasonably conclude, absent corroboration, that the testimony is

insufficient to meet the standard of proof required.” Sako v. Gonzales, 434 F.3d 857, 862 (6th Cir.

2006) (citation omitted). Indeed, we have held that, even if an applicant’s credibility is not in

question, the failure to provide reasonably available corroborating evidence “can lead to a finding

that an applicant has failed to meet her burden of proof.”9 Dorosh v. Ashcroft, 398 F.3d 379, 382

(6th Cir. 2004) (internal quotation marks and citation omitted); see also Shkabari v. Gonzales, 427

F.3d 324, 331 (6th Cir. 2005) (holding that applicant failed to meet refugee burden where record

included evidence that she could have obtained documents confirming her hospital visit after

allegedly being beaten by police, or other medical evidence, but failed to do so).

       Here, the IJ was correct to find that the absence of an affidavit or certificate of membership

from any congregant of the Baptist church in Russia or from the church itself further undermined

Shipilova’s credibility. Her church membership goes to the heart of her claim for asylum based on


       9
         Shipilova argues that the BIA erred because it “never stated why Ms. Shipilova’s
explanations for her lack of corroboration from her acquaintances and grandmother were
insufficient.” We have not “adopt[ed] a requirement that the Immigration Judge [or BIA]
specifically address on the record why an applicant’s explanation is insufficient, and [Shipilova]
points this court to no published Sixth Circuit case law that does.” Fisenko v. Holder, 336 F. App’x
504, 511 (6th Cir. 2009) (unpublished).
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a fear of religious persecution. Moreover, the IJ properly found it significant that Shipilova failed

to provide: (1) any corroboration from the attorney her pastor in Russia allegedly called for advice;

(2) a police report or other evidence of her complaints; (3) any medical corroboration for her alleged

injuries; (4) a letter from her paternal grandmother who taught her about the Baptist religion; (5) a

letter from her brother, or mother, with whom she had spoken two weeks prior to her hearing; (6)

copies of any religious literature she disseminated in Russia; or (7) a friend from her church in the

United States as a witness at her hearing.

       In sum, Shipilova’s testimony was inconsistent regarding several significant matters that go

to the heart of her claim, which would tend to enhance her claims of persecution. Furthermore,

Shipilova proffered insufficient corroboration to demonstrate persecution given that her testimony

was not credible. Therefore, “[b]ased on the administrative record, a reasonable adjudicator would

not be compelled to find [Shipilova] credible.” Pilica v. Ashcroft, 388 F.3d 941, 952 (6th Cir. 2004).

Accordingly, Shipilova did not sustain her burden of proving she is entitled to asylum.

       “Because an alien must meet a higher burden in establishing a right to withholding of

removal than in demonstrating asylum eligibility, an alien who fails to qualify for asylum necessarily

does not qualify for withholding of removal.” Singh, 398 F.3d at 401. Shipilova’s application for

withholding of removal is accordingly foreclosed, as is her request for protection under the CAT.

See Hamida v. Gonzales, 478 F.3d 734, 741-42 (6th Cir. 2007).

                                                 IV.

       For these reasons, we deny the petition for review.


                                                - 14 -
