Nataliya DYACHUK, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 379 F. App'x 113

SUMMARY ORDER Nataliya Dyachuk, a native of the Soviet Union and citizen of Ukraine, seeks review of a June 29, 2009 order of the BIA, affirming the June 7, 2007 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Nataliya Dyachuk, No. [ AXXX XXX XXX ] (B.I.A. June 29, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City June 7, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the IJ’s decision as modified by the BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). 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).

Substantial evidence supports the IJ’s adverse credibility determination: (1) although Dyachuk testified that the university she attended was not affiliated with the Seventh Day Adventist Church, the Government submitted evidence to the contrary; (2) although Dyachuk testified that she was the only person at her university who practiced Seventh Day Adventism, the evidence she submitted stated that many children from Adventist families studied at that school; and (3) although Dyachuk submitted evidence stating that she was beaten many times by students, her testimony and asylum application indicated that she was beaten only once by students.

Because the discrepancies were based on specific examples in the record, the agency was entitled to rely on the cumulative effect of these discrepancies to find Dyachuk not credible. See 8 U.S.C. § 1158(b)(l)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Additionally, because the agency found Dyachuk not credible, it was proper under the provisions of the REAL ID Act for the IJ to rely on the absence of available evidence, which may have corroborated her claim. See 8 U.S.C. § 1158(b)(l)(B)(ii).

While Dyachuk asserts that corroborating evidence from the hospital was not reasonably available, the IJ was not required to first identify the particular pieces of missing, relevant evidence, and show that this evidence was reasonably available to her before relying on a lack of corroboration to support the adverse credibility finding. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Finally, the IJ reasonably relied on the absence of any objective documentary evidence in rejecting Dyachuk’s claim of a well-founded fear of future persecution.

Indeed, the IJ properly noted that the 2006 State Department International Religious Freedom Report states that the government sought at all levels to protect the right of freedom of religion. Accordingly, considering the totality of the circumstances, the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(l)(B)(iii). As the only evidence of persecution or a threat to Dyachuk’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for both asylum and withholding of removal.

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Furthermore, because Dyachuk failed to challenge the IJ’s denial of her CAT claim either before the BIA or this Court, we deem any such argument abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007). 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, 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).