13-3940-ag
Chiadi v. Lynch
                                                                                 BIA
                                                                           Laforest, IJ
                                                                         A096 506 966
                       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
10th day of March, two thousand sixteen.

PRESENT:
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
         DENNY CHIN,
              Circuit Judges.
_____________________________________

OLUCHI NNENNA CHIADI,
         Petitioner,

                  v.                                           13-3940-ag
                                                               NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
         Respondent.
_____________________________________

FOR PETITIONER:                    Albert Van-Lare, Law Offices of
                                   Albert Van-Lare, New York, New York.



* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
                                General; Eric W. Marsteller, Senior
                                Litigation Counsel; Remi da
                                Rocha-Afodu, Trial Attorney, Office
                                of Immigration Litigation,
                                Washington, D.C.

    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 Oluchi Nnenna Chiadi, a native and citizen of

Nigeria, seeks review of a September 16, 2013 decision of the

BIA affirming an August 20, 2009 decision of an Immigration

Judge     (“IJ”)   denying    Chiadi’s   application   for   asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).     See In re Oluchi Nnenna Chiadi, No. A096 506

966 (B.I.A. Sept. 16, 2013), aff’g No. A096 506 966 (Immig. Ct.

N.Y.C. Aug. 20, 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 Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).               In

addition, because Chiadi does not challenge the agency’s denial

of asylum as untimely, our review is further limited to the
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agency’s adverse credibility determination as it pertains to

her application for withholding of removal and CAT relief.   See

Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d

Cir. 2005) (Sotomayor, J.).   Notwithstanding the government’s

argument to the contrary, we deem Chiadi’s challenge to the

adverse credibility determination sufficiently exhausted, as

the BIA addressed and affirmed the IJ’s findings in this regard.

See Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993).     The

applicable standards of review are well established.      See 8

U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    For asylum applications like Chiadi’s, governed by the REAL

ID Act, the agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on inconsistencies

in an applicant’s statements and other record evidence “without

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

claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

534 F.3d 162, 163–64 (2d Cir. 2008).

    In this case, the totality of the circumstances supports

the agency’s adverse credibility determination.     See Xiu Xia

Lin, 534 F.3d at 163-64.       We have held that in certain

                               3
circumstances “a single false document or a single instance of

false testimony may (if attributable to the petitioner) infect

the balance of the alien’s uncorroborated or unauthenticated

evidence.”     Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).

Thus, the IJ reasonably based her adverse determination on a

finding that Chiadi entered into a marriage for the purpose of

securing immigration benefits, and failed fully to acknowledge

that fraud during her hearing.       This finding was sufficiently

supported by Chiadi’s ex-husband’s affidavit; and Chiadi’s own

statements that she did not know why she married, had neither

lived with her husband nor consummated the marriage, and had

given her husband money.

    The   IJ     also   reasonably    identified   several   record

inconsistencies that undermine Chiadi’s allegation of past

persecution and her professed fear of future persecution.       For

example, Chiadi testified that she did not apply for asylum when

she came to the United States in 2003 because she did not yet

know of her husband’s involvement with a cult; but she

immediately contradicted herself by testifying that cult

members had contacted her on two occasions prior to 2003,

encounters that Chiadi had omitted from her original asylum

                                 4
application.     See Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining

that      inconsistency    and       omission      are        “functionally

equivalent”).       The   omission     is    significant       because   the

contacts were the basis of Chiadi’s claimed fear of the cult.

See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295

(2d Cir. 2006).      Accordingly, because the agency’s adverse

credibility     determination    was        supported    by    substantial

evidence, it properly denied both withholding of removal and

CAT relief, as these claims were based on the same factual

predicate.     See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.

2006).

       Insofar as Chiadi argues that her representative before the

BIA was ineffective, in part, because he filed a poor brief,

we decline to consider that claim here because Chiadi failed

to raise it before the BIA in the first instance.                        See

Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); accord

Garcia-Martinez v. Dep’t of Homeland Sec., 448 F.3d 511, 513–

14 (2d Cir. 2006).

       For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

                                  5
and any pending motion for a stay of removal in this petition

is DISMISSED as moot.   Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe, Clerk of Court




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