                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 23 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



NATALIYA KYRYLENKO,                              No. 07-73268

              Petitioner,                        Agency No. A075-758-576

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted September 10, 2009 **
                               San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Nataliya Kyrylenko (“Kyrylenko”), a native and citizen of Ukraine, petitions

for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal

of an Immigration Judge’s (“IJ”) decision ordering her removed from the United

States. The IJ and the BIA found that Kyrylenko was not credible and that her

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
asylum application was untimely. We have jurisdiction over this matter pursuant

to 8 U.S.C. § 1252(a)(1), and we deny Kyrylenko’s petition.

         The facts of this case are known to the parties. We repeat them only as

necessary.

                                            I

         “When the BIA affirms and adopts an IJ’s decision, this court reviews the

decision of the IJ.” Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). When the

BIA provides additional reasons for adopting the IJ’s decision, we review those

additions as well. See Rodriguez-Roman v. INS, 98 F.3d 416, 425 n.11 (9th Cir.

1996).

         We will uphold the BIA’s decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Abebe v.

Gonzales, 432 F.3d 1037, 1039–40 (9th Cir. 2005) (en banc) (internal quotation

marks omitted). Pursuant to 8 U.S.C. § 1252(b)(4)(B), substantial evidence exists

“unless any reasonable adjudicator would be compelled to conclude to the

contrary.”




                                            2
                                           II

      Substantial evidence supports the IJ’s and BIA’s conclusion that Kyrylenko

untimely filed her asylum application and failed to demonstrate extraordinary

circumstances to excuse her delay.

      In order to be eligible for asylum, an alien must “demonstrate by clear and

convincing evidence that [the alien’s asylum] application has been filed within 1

year after the date of the alien’s arrival in the United States.” 8 U.S.C.

§ 1158(a)(2)(B). This deadline can be excused if the alien shows that

“extraordinary circumstances” prevented the alien from filing the asylum

application within the 1 year deadline. 8 U.S.C. § 1158(a)(2)(D).

      Here, Kyrylenko entered the United States on or about July 29, 1998 and

withdrew from the college in Kentucky in late 1998. She did not file her asylum

application until May 2001, almost three years after entering the United States and

two and a half years after withdrawing from the college. Her application was thus

filed well after the one year limit set forth in 8 U.S.C. § 1158(a)(2)(B). She has

also failed to demonstrate any extraordinary circumstances to excuse the delay.

                                          III

      Substantial evidence also supports the IJ’s and BIA’s adverse credibility

finding.


                                           3
      “[T]he use of a fraudulent document may, considering the totality of the

record, lend support to an adverse credibility finding.” Yeimane-Berhe v. Ashcroft,

393 F.3d 907, 911 (9th Cir. 2004); see also Desta v. Ashcroft, 365 F.3d 741, 745

(9th Cir. 2004) (holding that forged documents that go the heart of an alien’s claim

can support an adverse credibility finding). Still, a counterfeit document will not

support an adverse credibility finding if the petitioner’s “testimony was

corroborated by other testimony and evidence, nothing else in the record suggests

that [the petitioner] is not credible, and there is no evidence indicating that [the

petitioner] knew the document was fraudulent.” Yeimane-Berhe, 393 F.3d at 911.

      Here, the IJ and BIA found Kyrylenko to not be credible for several reasons.

Kyrylenko submitted a forged birth certificate in an attempt to prove her Jewish

ethnicity, a critical element of her assertion that she would suffer persecution in

Ukraine for ethnic reasons. Kyrylenko offered inconsistent testimony about the

document’s counterfeit nature, first claiming that it was the original document her

parents received at her birth and then asserting that it was a reproduction obtained

when she ten.

      Additionally, Kyrylenko offered implausible testimony that she did not

know that Mid-Continent Baptist Bible College was a religious institution. The

record indicates that Kyrylenko is well educated, rendering entirely implausible her


                                            4
testimony that she was unaware of the religious nature of an overtly religious

institution. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005) (holding

that “testimony that is ‘implausible in light of the background evidence’ can

support an adverse credibility finding” (internal citations and emphasis omitted)).

      In the aggregate, these considerations provide substantial evidence for the

IJ’s and BIA’s adverse credibility finding. Kyrylenko has not presented evidence

sufficient to “compel[]” a finding contrary to that of the IJ. 8 U.S.C.

§ 1252(b)(4)(B).

                                          IV

      Substantial evidence supports the IJ’s and BIA’s conclusion that Kyrylenko

failed to demonstrate that she would be subjected to persecution on account of an

enumerated ground.

      In order to be granted withholding of removal, an alien must demonstrate a

“clear probability” that he or she “would be subject to persecution on [protected

grounds].” INS v. Stevic, 467 U.S. 407, 429–30 (1984). In order to show clear

probability of persecution, an alien may demonstrate either past persecution or a

threat of future persecution. 8 C.F.R. § 1208.16(b).

      Here, Kyrylenko was properly found to not be credible regarding her

assertions that she is of Jewish ethnicity. Even if she had been deemed credible,


                                          5
the country reports do not indicate that Kyrylenko would have suffered persecution

on account of being ethnically Jewish.

      Likewise, Kyrylenko’s claim of potential persecution on account of political

opinion is entirely uncompelling. Kyrylenko failed to provide any evidence that

she wrote articles critical of the Ukraine government and any testimony that she

had ever suffered persecution for political reasons. Absent any such evidence and

in light of the IJ’s and BIA’s proper adverse credibility finding, substantial

evidence supports the denial of Kyrylenko’s application for withholding of

removal.

                                           V

      Finally, the IJ’s and BIA’s denial of relief under CAT is supported by

substantial evidence.

      In order to be granted relief under CAT, an alien must show “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 also Kamalthas v. INS, 251 F.3d 1279,

1282 (9th Cir. 2001). CAT relief is not warranted “absent evidence of public

officials’ consent or acquiescence.” Azanor v. Ashcroft, 364 F.3d 1013, 1019 (9th

Cir. 2004) (internal quotations and citations omitted).




                                           6
      Here, Kyrylenko has failed to provide any detailed account, much less a

plausible one, in support of her claim that she would be detained and tortured with

the consent of the Ukraine government. On the contrary, the country reports

generally indicate the Ukraine government combats anti-Semitism and prohibits

torture. The country reports combine with the adverse credibility determination

and the dearth of compelling evidence in favor of Kyrylenko’s assertions to

provide substantial evidence supporting the denial of Kyrylenko’s application for

CAT relief.

                                         VI

      Kyrylenko’s remaining argument regarding due process is without merit.

      DENIED.




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