Shrestha v. Holder

10-5263-ag
Shrestha v. Holder
BIA
Bain, IJ
A089 222 757
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 22nd day of February, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
SITA SHRESTHA,
Petitioner,
v. 10-5263-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Ramesh K. Shrestha, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; William C. Peachey,
Assistant Director; Ada E. Bosque,
Senior Litigation Counsel, 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 DENIED.
Sita Shrestha, a native and citizen of Nepal, seeks
review of a November 30, 2010 decision of the BIA affirming
the August 10, 2009 decision of an Immigration Judge
(“IJ”)denying her applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Sita Shrestha, No. A089 222 757 (B.I.A. Nov.
30, 2010), aff’g No. A089 222 757 (Immig. Ct. N.Y. City Aug.
10, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA decision. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications such as Shrestha’s, governed by
the amendments made to the Immigration and Nationality Act
by the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
2
an asylum applicant’s “demeanor, candor, or responsiveness,”
the plausibility of her account, and inconsistencies in her
statements, without regard to whether they go “to the heart
of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008). Where an applicant gives “spare”
testimony, the fact-finder may “fairly wonder whether the
testimony is fabricated,” and “may wish to probe for
incidental details, seeking to draw out inconsistencies that
would support a finding of lack of credibility.” Jin Shui
Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled
in part on other grounds by Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc). This
Court “defer[s] 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. In this
case, the agency reasonably based its adverse credibility
determination on the vagueness and lack of material detail
in Shrestha’s testimony, and the lack of corroboration for
her claim.
Shrestha was consistently vague about her political
activities in Nepal, including what occurred after she won
3
the student union election, and what activities she engaged
in as student union vice-president and Nepal Congress Party
member. In addition, she failed to provide any detail as to
what occurred on the day she alleges she was raped and her
father murdered. In finding Shrestha not credible, the
agency pointed to the vagueness and lack of detail in her
testimony, and properly relied on the cumulative effect
thereof to support its adverse credibility finding. See 8
U.S.C. § 1158(b)(1)(B)(iii); Jin Shui Qiu, 329 F.3d at 152.
Moreover, despite Shrestha’s contention to the contrary, the
IJ did attempt to elicit additional details from her before
finding her testimony fatally vague, and the government
attorney repeatedly asked Shrestha questions attempting to
clarify her testimony and elicit more detail. See Ming Shi
Xue v. BIA, 439 F.3d 111, 122-23 (2d Cir. 2006); Jin Chen v.
U.S. Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005).
Finally, as the agency noted, Shrestha did not provide
sufficient evidence to corroborate her claim. See Biao Yang
v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)(“[T]he absence
of corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question”).
4
Therefore, in this case, the totality of the
circumstances support the agency’s adverse credibility
determination, and we will defer to that finding. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
Furthermore, because the only evidence of a threat to
Shrestha’s life or freedom depended upon her credibility,
the adverse credibility determination in this case
necessarily precludes success on Shrestha’s claims for
asylum, withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005)
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5