Sherpa v. Lynch ( 2015 )

14-2219
Sherpa v. Lynch
BIA
Wright, IJ
A200 921 039
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.
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
5th day of October, two thousand fifteen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
CHHINGBA SHERPA,
Petitioner,
v. 14-2219
NAC
Loretta E. Lynch, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Julie Mullaney, Mount Kisco,
New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Ernesto H. Molina,
Jr., Senior Litigation Counsel;
Andrew N. O’Malley, 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.
Petitioner Chhingba Sherpa, a native and citizen of Nepal,
seeks review of a June 2, 2014 decision of the BIA affirming
a September 19, 2012 decision of Immigration Judge (“IJ”) Virna
A. Wright denying Sherpa’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). See In re Chhingba Sherpa, No. A200 921 039 (B.I.A.
June 2, 2014), aff’g No. A200 921 039 (Immig. Ct. N.Y.C. Sept.
19, 2012). Under the circumstances of this case, we review the
IJ’s decision, see Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d
Cir. 2008), applying well established standards of review, see
8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534
F.3d 162, 165-66 (2d Cir. 2008). In doing so, we assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
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For asylum applications like Sherpa’s, 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, candor, or responsiveness, and
inconsistencies in his statements and other record evidence,
without regard to whether they go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
Xia Lin v. Mukasey, 534 F.3d at 163-65. 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 IJ reasonably relied on inconsistencies between
Sherpa’s testimony and record evidence and on implausible
aspects of Sherpa’s testimony in finding him not credible.
Sherpa testified that he did not leave and return to Nepal prior
to departing for the United States. His passport, however,
showed that he left and returned to Nepal—where he allegedly
faced persecution—in 2007 and in 2008. When confronted with
this information, Sherpa changed his testimony and confirmed
that he left and returned to Nepal on those dates. The IJ
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reasonably rejected Sherpa’s explanation that he did not
understand the question because he was asked about his travel
on specific dates. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005).
The IJ also reasonably found Sherpa’s testimony regarding
his detention by the Maoists implausible. See Wensheng Yan v.
Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). An IJ’s finding that
an applicant’s claim is inherently implausible is supported by
substantial evidence if “the reasons for [the IJ’s] incredulity
are evident.” Id. So long as an IJ’s finding is “tethered to
record evidence, and there is nothing else in the record from
which a firm conviction of error could properly be derived,”
we will not disturb the inherent implausibility finding. Id.;
see also Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).
Here, Sherpa testified that on the night he was captured,
Maoists beat him with bamboo sticks and with the butt of a gun.
They then captured and held him for about 20 days during which
Sherpa refused to join the Maoist Party, which infuriated his
captors. The IJ reasonably found implausible that Sherpa
remained unharmed during this lengthy detention even though he
refused to join the Maoists and they killed his friend for
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refusing to comply with their demands. Accordingly, we
identify no basis to disturb the agency’s adverse credibility
determination, which provided an adequate basis for denying him
asylum, withholding of removal, and CAT relief. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at 167.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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