Filed: Jan. 19, 2011
Latest Update: Feb. 21, 2020
Summary: 10-1790-ag Sherpa v. Holder BIA Elstein, IJ A096 265 980 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 TH
Summary: 10-1790-ag Sherpa v. Holder BIA Elstein, IJ A096 265 980 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..
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10-1790-ag
Sherpa v. Holder
BIA
Elstein, IJ
A096 265 980
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of January, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 PASANG SHERPA, AKA KISHWOR SHERPA,
14 Petitioner,
15
16 v. 10-1790-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; Melissa Lott, Trial
28 Attorney, Office of Immigration
29 Litigation, Washington D.C.
30
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 is
4 DENIED.
5 Petitioner Pasang Sherpa, a native and citizen of Nepal,
6 seeks review of the April 8, 2010, order of the BIA affirming
7 the March 27, 2008, decision of Immigration Judge (“IJ”)
8 Annette S. Elstein denying his application for asylum,
9 withholding of removal, and CAT relief. In re Pasang Sherpa,
10 No. A096 265 980 (B.I.A. Apr. 8, 2010), aff’g No. A096 265 980
11 (Immig. Ct. N.Y. City Mar. 27, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 The government argues that Sherpa failed to exhaust any
15 challenge to the IJ’s adverse credibility determination by
16 neglecting to address that determination on appeal to the BIA.
17 We agree. While Sherpa stated in his Notice of Appeal to the
18 BIA that he “was a credible witness,” he failed to articulate
19 any error in the IJ’s credibility determination, or even
20 acknowledge the IJ’s specific findings. In his brief to this
21 Court, Sherpa does not address the government’s exhaustion
22 argument, but instead challenges the IJ’s credibility
2
1 determination with specificity.
2 In addition to the statutory requirement that petitioners
3 exhaust the categories of relief they seek, 8 U.S.C.
4 § 1252(d)(1), this Court generally will not consider arguments
5 regarding individual issues that were not exhausted before the
6 agency. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
7 119-20 (2d Cir. 2007). While not jurisdictional, this
8 judicially-imposed issue exhaustion requirement is mandatory.
9
Id. at 119-20. In particular, a petitioner must challenge all
10 findings that are dispositive of his claims, and the failure
11 to do so is fatal to his petition for review. See Steevenez
12 v. Gonzales,
476 F.3d 114, 117-18 (2d Cir. 2007). Although
13 this Court has held that it may consider an issue not raised
14 by an applicant in the course of an appeal to the BIA when the
15 BIA nevertheless addressed the issue, Waldron v. INS,
17 F.3d
16 511, 515 n.7 (2d Cir. 1993), the BIA did not excuse Sherpa’s
17 failure to exhaust when it explicitly noted that Sherpa did
18 not challenge any of the IJ’s findings with particularity.
19 Therefore, considering Sherpa’s new arguments would defeat the
20 purpose of the issue exhaustion requirement – to allow the
21 agency to review its own decisions for error after having the
22 opportunity to consider the applicant’s arguments. See
3
1 Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir. 2004).
2 Even if we were to reach Sherpa’s unexhausted arguments,
3 they are entirely without merit.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16
4
