Sherpa v. Barr

17-2060
Sherpa v. Barr
BIA
Nelson, IJ
A205 643 974
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
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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 11th day of April, two thousand nineteen.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
PEMA SHERPA,
Petitioner,
v. 17-2060
NAC
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stuart Altman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Derek C. Julius,
Assistant Director; Anthony O.
Pottinger, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 GRANTED.
Petitioner Pema Sherpa, a native and citizen of Nepal,
seeks review of a June 16, 2017, decision of the BIA affirming
a November 30, 2016, decision of an Immigration Judge (“IJ”)
denying Sherpa’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Pema Sherpa, No. A 205 643 974 (B.I.A. June 16,
2017), aff’g No. A 205 643 974 (Immig. Ct. N.Y. City Nov. 30,
2016). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Because the BIA adopted the IJ’s adverse credibility
determination, without addressing any of the IJ’s other
findings, we review both the IJ’s and BIA’s decisions but
only as to credibility. See Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review adverse
credibility determinations under the substantial evidence
standard. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
2018).
The governing REAL ID Act credibility standard provides
that the agency must “[c]onsider[] the totality of the
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circumstances” and may consider inconsistencies between an
applicant’s written and oral statements or between her
statements and other evidence. 8 U.S.C. § 1158(b)(1)(B)(iii).
Although the agency may rely on non-material omissions as
well as inconsistencies in making credibility determinations,
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008),
“not all omissions and inconsistencies . . . deserve the same
weight,” Hong Fei Gao, 891 F.3d at 77. The agency must
“distinguish between (1) omissions that arise merely because
an applicant’s oral testimony is more detailed than his or
her written application, and (2) omissions that tend to show
that an applicant has fabricated his or her claim.” Id. at
82. Because the omissions in this case are similar to those
at issue in Hong Fei Gao, we remand for the agency to
reconsider the adverse credibility determination and for the
BIA to address the IJ’s alternative findings.
Sherpa’s application and testimony describe a 2008 attack
by the Maoists while she was campaigning for the Nepali
Congress Party and a 2011 attack by six members the Maoist-
affiliated Young Communist League (“YCL”) who came to
Sherpa’s house and beat Sherpa and her father. The agency’s
adverse credibility ruling relied primarily on an omission
from her application of an injury that Sherpa sustained to
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her arm when she fell during the 2011 attack. But Sherpa’s
asylum application and testimony gave largely consistent
descriptions of the 2011 incident. Moreover, the omitted
injury was caused by her fall rather than a blow from her
attackers, and she did not seek any medical treatment.
As in Hong Fei Gao, the agency placed too much weight on
Sherpa’s omission of her injury. Sherpa’s testimony regarding
the injury to her arm “was supplementary, not contradictory,”
id. at 79. Similarly, Sherpa’s father’s omission of the injury
does not contradict Sherpa’s statements. Id. at 81 (“[W]here
a third party’s omission creates no inconsistency with the
applicant’s own statements[,] an applicant’s failure to
explain third party omissions is less probative than an
applicant’s failure to explain his or her own omissions.”).
Moreover, because the omission of the injury was not
obvious, the IJ was required to confront Sherpa about the
omissions in her application and her father’s letter before
relying on them as the primary basis for an adverse
credibility ruling. See Ming Shi Xue v. BIA, 439 F.3d 111,
121 (2d Cir. 2006) (explaining that where inconsistencies
“are not plainly obvious,” the agency may not rely on them
without first “identifying the alleged inconsistencies for
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the applicant and giving the applicant an opportunity to
address them”).
The IJ’s remaining findings do not provide substantial
evidence for the adverse credibility determination because
they reflect the same deficiencies. The IJ found that Sherpa’s
application omitted the date of the first attack. However,
Sherpa’s testimony that the attack occurred in February 2008
is consistent with the timeframe of her application, which
stated that the attack took place while she was campaigning
for the Nepali Congress Party before an election and before
she left for a temporary job in Israel. Additionally, Sherpa’s
testimony describing the attack was consistent with her
application except that she described being “beaten” rather
than “kicked.” Sherpa was not confronted about this perceived
inconsistency. See id.
Apart from the omissions, Sherpa provided a detailed
written statement and testimony consistent with her
application regarding the events in 2008 and 2011 that caused
her to leave Nepal. Accordingly, we remand for the agency to
reconsider its adverse credibility ruling under the clarified
standard set forth in Hong Fei Gao. On remand, the BIA may
also review in the first instance the IJ’s alternative
findings regarding the severity of the past harm, changed
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conditions in Nepal, and the possibility of internal
relocation.
For the foregoing reasons, the petition for review is
GRANTED, the BIA’s decision is VACATED, and the case is
REMANDED for further proceedings consistent with this order.
As we have completed our review, any stay of removal that the
Court previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. 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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