Sangpo v. Lynch ( 2015 )

13-2483
Sangpo v. Lynch
BIA
Nelson, IJ
A094 813 736
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 8th day of December, two thousand fifteen.
PRESENT: JOSÉ A. CABRANES,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
LHAKPA SANGPO,
Petitioner,
v. 13-2483
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for
former Attorney General Eric H. Holder, Jr. as
Respondent.
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FOR PETITIONER: Jason A. Nielson, Mungoven &
Associates, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Leslie McKay, Assistant
Director; Anthony J. Messuri, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, 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.
Lhakpa Sangpo, a claimed native and citizen of the
People’s Republic of China, seeks review of a May 29, 2013,
decision of the BIA affirming the June 20, 2012, decision of
Immigration Judge (“IJ”) Barbara A. Nelson, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). See In re Lhakpa
Sangpo, No. A094 813 736 (B.I.A. May 29, 2013), aff’g No. A094
813 736 (Immig. Ct. N.Y.C. June 20, 2012). Sangpo sought such
relief based on political persecution in the form of
incarceration and beatings because of his brother’s role in
the Tibetan freedom movement and his discussions of the Dalai
Lama with clients while he was a tour guide. Under the
circumstances of this case, we review the IJ’s decision as
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modified by the BIA, see Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying well
established standards of review, see 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). In
doing so, we assume the parties’ familiarity with the facts
and procedural history of this case.
For asylum applications, like Sangpo’s, governed by the
REAL ID Act of 2005, the agency may, “[c]onsidering the
totality of the circumstances,” base a credibility finding on
an asylum applicant’s “demeanor, candor, or responsiveness,”
the plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart of
the applicant’s claim,” so long as they reasonably support an
inference that the applicant is not credible. 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008). We “defer . . . to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d at 167.
The significant inconsistencies that the IJ identified in
the record and the BIA affirmed include the following. In his
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asylum application, Sangpo stated that his mother came to
India in 2000 to take him back to Tibet but he testified that
his father picked him up in India in 1999. Sangpo also stated
in his asylum application that he was arrested in March 2003,
and taken to the police station, where the police interrogated
him. Three days later he was sentenced to a term of
imprisonment in Drapchi prison. Sangpo testified, to the
contrary, that when he was arrested, he was taken directly to
Drapchi prison, and sentenced upon arrival. When confronted
with the discrepancy, Sangpo first testified that the police
station and the prison were “the same thing.” Certified
Administrative Record (“CAR”) 123. He then stated that he
spent a couple of hours at the police station, but was sent to
the prison on the same day he was arrested. Finally, Sangpo
submitted a copy of his Tibetan Freedom Movement Passport
Book, which he testified was issued to him in Nepal within a
month of his arrival there in 2005. However, the date of
issue in the Passport Book is August 23, 2002.
Sangpo’s inconsistent documentary and testimonial
evidence regarding which parent took him from India to Tibet;
the circumstances surrounding his arrest, sentencing, and
imprisonment; and when he arrived in Nepal provide substantial
evidence to support the agency’s finding that he was not
credible, particularly because the latter two discrepancies
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relate directly to his claim of past harm, and call into
question whether he was ever imprisoned. See Xiu Xia Lin, 534
F.3d at 166, 167. Furthermore, at his hearing, Sangpo was
confronted with the inconsistencies and the agency reasonably
found that he did not adequately explain them. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Accordingly, the
agency’s adverse credibility determination is supported by the
totality of the circumstances. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
Finally, because the only evidence of a threat to
Sangpo’s life or freedom depended upon his credibility, the
adverse credibility finding necessarily precludes success on
Sangpo’s claims for asylum, withholding of removal, and CAT
relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED. 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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