Sherpa v. Garland ( 2023 )

20-4010
Sherpa v. Garland
BIA
Cassin, IJ
A208 927 545
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 15th day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 ROBERT D. SACK,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 NGADOMA SHERPA,
15 Petitioner,
16
17 v. 20-4010
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
25 New York, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Brianne Whelan
1 Cohen, Rebecca Hoffberg Phillips,
2 Senior Litigation Counsel, Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Ngadoma Sherpa, a native and citizen of Nepal,
11 seeks review of an October 29, 2020 decision of the BIA
12 affirming a July 27, 2018 decision of an Immigration Judge
13 (“IJ”) denying her application for asylum, withholding of
14 removal, and protection under the Convention Against Torture
15 (“CAT”). In re Ngadoma Sherpa, No. A208 927 545 (B.I.A. Oct.
16 29, 2020), aff’g No. A208 927 545 (Immig. Ct. N.Y. City July
17 27, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have reviewed the decisions of both the IJ and the
20 BIA. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524,
21 528 (2d Cir. 2006). The applicable standards of review are
22 well established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
23 administrative findings of fact are conclusive unless any
24 reasonable adjudicator would be compelled to conclude to the
2
1 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
2 Cir. 2018) (reviewing adverse credibility determination
3 “under the substantial evidence standard”).
4 “Considering the totality of the circumstances, and all
5 relevant factors, a trier of fact may base a credibility
6 determination on the demeanor, candor, or responsiveness of
7 the applicant . . . , the consistency between the applicant’s
8 or witness’s written and oral statements . . . , the internal
9 consistency of each such statement, [and] the consistency of
10 such statements with other evidence of record . . . without
11 regard to whether an inconsistency, inaccuracy, or falsehood
12 goes to the heart of the applicant’s claim, or any other
13 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
14 defer . . . to an IJ’s credibility determination unless . . .
15 it is plain that no reasonable fact-finder could make such an
16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
17 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
18 at 76. Here, substantial evidence supports the adverse
19 credibility determination.
20 As an initial matter, the agency did not err in relying
21 on the record of Sherpa’s credible fear interview because it
3
1 bears sufficient indicia of reliability: while not a
2 transcript, the interview is “memorialized in a typewritten
3 document setting forth the questions put to [Sherpa] as well
4 as her responses”; the interview was conducted with a Nepali
5 interpreter, whom Sherpa stated she could understand; and the
6 asylum officer not only explained the purpose of the interview
7 and the fact that Sherpa could seek clarification at any
8 point, but also asked Sherpa questions about past and future
9 harm that were designed to elicit an asylum claim. Ming
10 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). Thus, the
11 agency reasonably relied on inconsistencies between that
12 interview and Sherpa’s in court testimony that call into
13 question the basis of Sherpa’s claim.
14 Sherpa stated in her credible fear interview that she
15 had been married twice, that she and her first husband were
16 threatened by Maoists and fled to Kathmandu together, and
17 that she married her second husband a year before the
18 interview. She also told the asylum officer that she owned
19 a shop in Nepal and worked as a housekeeper and a nanny.
20 However, she testified before the IJ that she had never been
21 married, she was a Buddhist nun, and she had lived in a
4
1 monastery for 15 years, until 2009. The agency did not err
2 in relying on these discrepancies, particularly as they call
3 into question Sherpa’s claim that Maoists dragged her out of
4 the monastery and beat her. See Xiu Xia Lin, 534 F.3d at 167
5 (noting that the agency “may rely on any inconsistency
6 . . . as long as the ‘totality of the circumstances’
7 establishes that an asylum applicant is not credible”
8 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).
9 The agency also reasonably relied on Sherpa’s differing
10 accounts of her involvement in the Nepali Congress Party
11 (“NCP”) and her alleged physical harm. In her credible fear
12 interview, Sherpa told the asylum officer that she voted for
13 the NCP but was not a member and had not volunteered for the
14 party. She also stated that she had never been physically
15 harmed by Maoists, adding that they tried their best to harm
16 her but that she had avoided them by living in hiding at
17 friends’ houses. But Sherpa testified to the IJ that she
18 campaigned for the NCP in her village and was beaten by
19 Maoists on two occasions -- once at the monastery in 2008 and
20 again at her home in 2013. These discrepancies likewise
21 provide substantial support for the adverse credibility
5
1 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec.,
2 446 F.3d 289, 295 (2d Cir. 2006) (holding that a “material
3 inconsistency in an aspect of [the] story that served as an
4 example of the very persecution from which [Petitioner]
5 sought asylum . . . afforded substantial evidence to support
6 the adverse credibility finding”); see also Likai Gao v. Barr,
7 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single
8 inconsistency might preclude an alien from showing that an IJ
9 was compelled to find him credible. Multiple inconsistencies
10 would so preclude even more forcefully.”). Moreover, the
11 agency was not required to accept Sherpa’s explanation that
12 her smugglers told her to lie in her credible fear interview.
13 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
14 petitioner must do more than offer a plausible explanation
15 for his inconsistent statements to secure relief; he must
16 demonstrate that a reasonable fact-finder would be compelled
17 to credit his testimony.” (quotation marks omitted)).
18 The adverse credibility finding is further bolstered by
19 the IJ’s demeanor finding, to which we defer, see Li Hua Lin
20 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006),
21 and the absence of any reliable corroboration for Sherpa’s
6
1 testimony, Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2 2007) (“An applicant’s failure to corroborate . . . her
3 testimony may bear on credibility, because the absence of
4 corroboration in general makes an applicant unable to
5 rehabilitate testimony that has already been called into
6 question.”). The IJ did not err in affording minimal weight
7 to Sherpa’s supporting letters because they were inconsistent
8 with her testimony, prepared by interested witnesses or
9 witnesses not available for cross-examination, or they did
10 not confirm the alleged persecution. See Likai Gao, 968 F.3d
11 at 149 (concluding that “the IJ acted within her discretion
12 in according . . . little weight” to letters from the
13 applicant’s wife and friend “because the declarants
14 (particularly [the applicant’s] wife) were interested parties
15 and neither was available for cross-examination”); Y.C. v.
16 Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We generally
17 defer to the agency’s evaluation of the weight to be afforded
18 an applicant’s documentary evidence.”).
19 In sum, the multiple inconsistencies and lack of reliable
20 corroboration provide substantial evidence in support of the
21 IJ’s adverse credibility determination. See Likai Gao, 968
7
1 F.3d at 145 n.8; Biao Yang, 496 F.3d at 273. The adverse
2 credibility determination is dispositive of Sherpa’s
3 application for asylum, withholding of removal, and CAT
4 relief because all three forms of relief were based on the
5 same discredited factual predicate. See Paul v. Gonzales,
6 444 F.3d 148, 156–57 (2d Cir. 2006).
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
13
8