Sherpa v. Holder , 602 F. App'x 20 ( 2015 )

14-234
Sherpa v. Holder
BIA
Wright, IJ
A201 120 105
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
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 12th day of March, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 KALJANG SHERPA,
14 Petitioner,
15
16 v. 14-234
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jason A. Nielson, Mungoven &
24 Associates, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; Deitz
29 P. Lefort, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Kaljang Sherpa, a native and citizen of Nepal, seeks
10 review of a December 30, 2013, decision of the BIA,
11 affirming the December 12, 2012, decision of an Immigration
12 Judge (“IJ”), which denied his application for asylum,
13 withholding of removal, and relief pursuant to the
14 Convention Against Torture (“CAT”). In re Kaljang Sherpa,
15 No. A201 120 105 (B.I.A. Dec. 30, 2013), aff’g No. A201 120
16 105 (Immig. Ct. N.Y.C. Dec. 12, 2012). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as modified by the BIA. See Xue Hong Yang
21 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
22 The applicable standards of review are well established.
23 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
24 510, 513 (2d Cir. 2009).
1 For asylum applications like Sherpa’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility
4 determination on inconsistencies in an asylum applicant’s
5 statements and other record evidence, “without regard to
6 whether” they go “to the heart of the applicant’s claim.” 8
7 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
12 Substantial evidence supports the agency’s adverse
13 credibility determination.
14 The agency reasonably found inconsistent Sherpa’s
15 initial testimony that, after he left Nepal, his wife lived
16 in Kathmandu and did not receive any threats from the
17 Maoists, his later testimony that she actually lived in
18 Solukhumbu and did receive threats from the Maoists, and his
19 witness’s statement that Sherpa’s wife lived in both places.
20 While these inconsistencies formed the crux of the agency’s
21 adverse credibility determination, it also reasonably relied
3
1 on an inconsistency regarding the number of interactions
2 Sherpa and his family had with Maoists when Sherpa was in
3 Nepal. See Xiu Xia Lin, 534 F.3d at 166-67 & n.3. Sherpa
4 did not provide compelling explanations for these
5 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
6 (2d Cir. 2005) (holding that the agency need not credit an
7 applicant’s explanations for inconsistent testimony unless
8 those explanations would compel a reasonable fact-finder to
9 do so).
10 Given these inconsistency findings, the totality of the
11 circumstances supports the agency’s adverse credibility
12 determination. See Xiu Xia Lin, 534 F.3d at 167. That
13 determination is dispositive of asylum, withholding of
14 removal, and CAT relief as those claims are based on the
15 same factual predicate. Paul v. Gonzales, 444 F.3d 148,
16 156-57 (2d Cir. 2006).
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1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, Sherpa’s pending
3 motion for a stay of removal in this petition is DISMISSED
4 as moot.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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