Sherpa v. Holder ( 2013 )

11-3832 BIA
Sherpa v. Holder Hom, IJ
A099 697 129
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of April, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 PEMA CHHEWANG SHERPA,
14 Petitioner,
15
16 v. 11-3832
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 N.Y.
2526 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; Deitz
29 P. Lefort, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Pema Chhewang Sherpa, a native and citizen of Nepal,
6 seeks review of an August 24, 2011, decision of the BIA
7 affirming the November 2, 2009, decision of Immigration
8 Judge (“IJ”) Sandy K. Hom, which denied his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Pema Chhewang
11 Sherpa, No. A099 697 129 (B.I.A. Aug. 24, 2011), aff’g No.
12 A099 697 129 (Immig. Ct. N.Y. City Nov. 2, 2009). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008) (citation omitted). The applicable standards
19 of review are well-established. See 8 U.S.C.
20 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
21 510, 513 (2d Cir. 2009).
22
2
1 For asylum applications such as Sherpa’s, governed by
2 the amendments made to the Immigration and Nationality Act
3 by the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 any inconsistencies or omissions in the applicant’s
6 statements, without regard to whether the inconsistencies or
7 omissions go “to the heart of the applicant’s claim.” See 8
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
9 F.3d 162, 167 (2d Cir. 2008) (per curiam).
10 The agency found that Sherpa’s testimony was incredible
11 because his original asylum application filed in May 2006
12 and his amended application filed in July 2006 were
13 inconsistent with his testimony during his merits hearing
14 regarding alleged attacks by Maoists in 2002, 2003 and 2004.
15 Sherpa acknowledges the inconsistencies but argues that the
16 adverse credibility determination overly relied on the minor
17 discrepancies. However, the BIA reasonably found no clear
18 error in the IJ’s adverse credibility determination based on
19 the omissions and inconsistencies. See Xiu Xia Lin, 534
20 F.3d at 167.
21 Sherpa also argues that he was not legally responsible
22 for his May and July 2006 applications because he “did not
3
1 understand the contents of the documents he signed.”
2 However, as the IJ noted, Sherpa’s signature on his
3 applications established a presumption that he was aware of
4 the contents of the applications. See 8 C.F.R.
5 § 1208.3(c)(2). Sherpa attempts to overcome this
6 presumption by explaining that the inconsistencies in his
7 first two asylum applications were “mistakes” caused by
8 “confusion” with his former attorney regarding when or
9 whether to file the applications. However, the agency
10 reasonably rejected this explanation because it contradicted
11 Sherpa’s testimony that he provided “examples” of his
12 interaction with the Maoists to a third party at his prior
13 attorney’s office who used his examples and “made up” false
14 information for his asylum applications. See Majidi v.
15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that
16 the agency need not credit an applicant’s explanations for
17 inconsistent testimony unless those explanations would
18 compel a reasonable fact-finder to do so).
19 To the extent Sherpa argues that he is entitled to
20 withholding of removal and CAT relief independent from his
21 incredible testimony based on the background materials
22 submitted with his applications, Sherpa does not identify
4
1 any specific record evidence indicating that he will be
2 singled out for harm on account of a protected ground, or
3 for any other reason thus, his generalized assertion of a
4 fear of future harm is merely speculative and inadequate to
5 meet his burden of proof. Jian Xing Huang v. INS, 421 F.3d
6 125, 129 (2d Cir. 2005) (per curiam) (absent “solid support”
7 in the record that his fear is objectively reasonable, a
8 petitioner’s claim is “speculative at best”).
9 Therefore, because the totality of the circumstances
10 supports the agency’s adverse credibility determination, we
11 defer to that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii);
12 Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a
13 threat to Sherpa’s life or freedom depended upon his
14 credibility, the adverse credibility determination in this
15 case is dispositive of his claims for asylum, withholding of
16 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
17 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6