Xue Zhui Guan v. Holder

13-3265
Sherpa v. Holder
BIA
Cheng, IJ
A087 462 979
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.
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 7th day of January, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 NAMGYAL SHERPA,
14 Petitioner,
15
16 v. 13-3265
17 NAC
18 ERIC H. HOLDER, JR., UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony W. Norwood, Senior
28 Litigation Counsel; Manuel Palau,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Namgyal Sherpa, a native and citizen of Nepal, seeks
9 review of an August 14, 2013, decision of the BIA, affirming
10 the December 27, 2012, decision of an Immigration Judge
11 (“IJ”), denying his application for asylum, withholding of
12 removal, and relief pursuant to the Convention Against
13 Torture (“CAT”). In re Namgyal Sherpa, No. A087 462 979
14 (B.I.A. Aug. 14, 2013), aff’g No. A087 462 979 (Immig. Ct.
15 N.Y.C. Dec. 27, 2012). We assume the parties’ familiarity
16 with the underlying facts and procedural history in this
17 case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s and BIA’s decisions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
21 Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications like Sherpa’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility
4 determination on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements and other record evidence, “without regard to
7 whether” they go “to the heart of the applicant’s claim.” 8
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia Lin
12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
13 Substantial evidence supports the agency’s adverse
14 credibility determination.
15 The agency reasonably relied in part on Sherpa’s
16 demeanor, noting that he was at times unresponsive and
17 evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shu Wen Sun v.
18 BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam). That
19 finding is supported by the record.
20 The IJ’s demeanor findings and the adverse credibility
21 determination as a whole are further supported by
22 inconsistencies in the record. See Li Hua Lin v. U.S. Dep’t
23 of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be
3
1 still more confident in our review of observations about an
2 applicant’s demeanor where, as here, they are supported by
3 specific examples of inconsistent testimony.”). The agency
4 reasonably determined that inconsistencies in Sherpa’s
5 evidence regarding his employment in Nepal reflected
6 negatively on his credibility, particularly given his claim
7 that Maoists harmed him in part on account of his activities
8 as a trekking guide. Sherpa testified that he worked for a
9 certain trekking company after 2002, but his asylum
10 application listed different dates, as did a letter from
11 that company. The agency also reasonably relied on Sherpa’s
12 omission from his application of a third company he
13 supposedly worked for part time. See Xiu Xia Lin, 534 F.3d
14 at 166 n.3 (providing that for purposes of analyzing a
15 credibility determination, “[a]n inconsistency and an
16 omission are . . . functionally equivalent”). The agency
17 was not required to credit his conflicting explanations for
18 these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77,
19 80-81 (2d Cir. 2005)
20 The agency also reasonably considered inconsistencies
21 and omissions concerning Sherpa’s medical treatment in
22 Nepal. Despite repeated questions about the details of the
23 treatment he received after he was beaten by Maoists in
4
1 2006, Sherpa did not testify that he received an x-ray;
2 rather, he emphatically stated that the doctor only looked
3 at his bruises and gave him medicine. But his doctor’s
4 notes state that Sherpa was given an x-ray. The agency was
5 not required to credit his explanation that he misunderstood
6 the Government’s questions in this regard because he
7 provided responsive answers to those questions. See Majidi,
8 430 F.3d at 80-81. Moreover, a letter from Sherpa’s wife
9 failed to mention that he sought medical treatment at all
10 after this incident.
11 The agency also found that Sherpa failed to adequately
12 corroborate his claim. An applicant’s failure to
13 corroborate testimony may bear on credibility, either
14 because the absence of particular corroborating evidence is
15 viewed as suspicious, or because the absence of
16 corroboration in general makes an applicant unable to
17 rehabilitate testimony that has already been called into
18 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
19 Cir. 2007). Sherpa does not challenge that finding. See
20 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
21 2005).
22 Given the demeanor, inconsistency, and corroboration
23 findings, substantial evidence supports the agency’s adverse
5
1 credibility determination.1 See Xiu Xia Lin, 534 F.3d at
2 167. That determination is dispositive of asylum,
3 withholding of removal, and CAT as those claims are based on
4 the same factual predicate. Paul v. Gonzales, 444 F.3d 148,
5 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18
1
The IJ improperly found that Sherpa omitted from
his asylum application that he visited an herbal doctor
after one encounter with Maoists because he stated that
he sought treatment locally after that incident. See
Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).
Nevertheless, remand is unnecessary because the agency’s
other findings constitute substantial evidence to support
its adverse credibility determination as to Sherpa’s
claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 339 (2d Cir. 2006).
6