No. 08-3187-ag.United States Court of Appeals, Second Circuit.
March 4, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: H. Raymond Fasano, New York, New York.
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FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Keith I. McManus, Senior Litigation Counsel, Kimberly A. Burdge, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
PRESENT: HON. JOSé A. CABRANES, HON. ROBERT A. KATZMANN, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Aliaksandra Yatsevich, a native of the former Soviet Union and citizen of Belarus, seeks review of a May 27, 2008 order of the BIA affirming the June 28, 2006 decision of Immigration Judge (“IJ”) Sandy K. Hom, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Aliaksandra Yatsevich, No. A99 589 624 (B.I.A. May 27, 2008), aff’g No. A99 589 624 (Immig. Ct. N.Y. City June 28, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Yatsevich does not challenge the IJ’s pretermission of her untimely asylum application, we deem any such challenge to have been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005). Moreover, we generally lack jurisdiction to
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review such findings. See 8 U.S.C. § 1158(a)(3). Thus, we review only Yatsevich’s challenge to the agency’s denial of her application for withholding of removal.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b) (4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
Because Yatsevich filed her asylum application after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 apply to her asylum application See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005). For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.”
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8 U.S.C. § 1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. N. Dec. 260, 265 (BIA 2007).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ found Yatsevich’s testimony that she had a copy of a 2004 asylum application, which she allegedly had submitted prior to her 2005 asylum application, inconsistent with her statement to an asylum officer that “she did not ask [the law firm] for the [fee] receipt and copy of the completed I-589 because she did `not know how the system works.'”[2] Thus, the IJ properly called Yatsevich’s credibility into question when she submitted an alleged copy of the 2004 asylum application. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying on the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) to find that once an IJ concludes that a document is false, he or she is “free to deem suspect other documents (and to disbelieve other testimony) that depend for probative weight upon [the applicant’s] veracity”).
The IJ also found that several aspects of Yatsevich’s testimony “bordered on implausible.” For example, Yatsevich
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testified that many newspapers reported an April 2002 rally in Belarus, yet she was not able to obtain any articles documenting that event. While Yatsevich offers explanations as to why her testimony was not implausible, such explanations — even if rational — “do not defeat a finding that the account is implausible.” See Ying Li v. BCIS, 529 F.3d 79, 83 (2d Cir. 2008). Accordingly, substantial evidence supports the agency’s adverse credibility determination and, thus, its denial of Yatsevich’s request for withholding of removal.
Finally, because Yatsevich failed to challenge the IJ’s denial of her CAT claim before either 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, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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