Filed: Nov. 15, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3496-ag Sherpa v. Holder BIA Abrams, IJ A089 252 045 A089 252 046 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 DATAB
Summary: 10-3496-ag Sherpa v. Holder BIA Abrams, IJ A089 252 045 A089 252 046 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 DATABA..
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10-3496-ag
Sherpa v. Holder
BIA
Abrams, IJ
A089 252 045
A089 252 046
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 15th day of November, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _______________________________________
13
14 PASANG DAWA SHERPA, ANG CHHOKPA SHERPA,
15 Petitioners,
16
17 v. 10-3496-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Ramesh K. Shrestha, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Genevieve Holm, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 DISMISSED, in part, and DENIED, in part.
5 Pasang Dawa Sherpa and Ang Chhokpa Sherpa, natives and
6 citizens of Nepal, seek review of an August 3, 2010,
7 decision of the BIA affirming the January 14, 2009, decision
8 of Immigration Judge (“IJ”) Steven R. Abrams, which denied
9 their applications for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Pasang Dawa Sherpa, Ang Chhokpa Sherpa, Nos. A089 252
12 045/046 (B.I.A. Aug. 3, 2010), aff’g Nos. A089 252 045/046
13 (Immig. Ct. N.Y. City Jan. 14, 2009). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we have
17 considered both the IJ’s and the BIA’s opinions “for the
18 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
19 (2d Cir. 2008) (internal citation omitted). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513
22 (2d Cir. 2009).
23
2
1 Petitioners failed to appeal the IJ’s denial of CAT
2 relief to the BIA, and, as a result, we are without
3 jurisdiction to consider this unexhausted claim. See
4 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
5 (2d Cir. 2006) (citing Beharry v. Ashcroft,
329 F.3d 51, 59
6 (2d Cir. 2003)). Moreover, we do not have jurisdiction to
7 review the agency’s finding that Petitioners’ asylum
8 application was untimely under 8 U.S.C. § 1158(a)(2)(B), or
9 its finding that neither changed nor extraordinary
10 circumstances excused Petitioners’ untimeliness under 8
11 U.S.C. § 1158(a)(2)(D). See 8 U.S.C. § 1158(a)(3).
12 Although we retain jurisdiction to review constitutional
13 claims and “questions of law,” see 8 U.S.C. § 1252(a)(2)(D),
14 Petitioners’ challenge to the IJ’s finding that they did not
15 establish either changed or extraordinary circumstances is
16 simply a challenge to the agency’s fact-finding
17 determination and exercise of discretion, over which we do
18 not have jurisdiction, see 8 U.S.C. § 1158(a); Xiao Ji Chen
19 v. U.S. Dep’t of Justice,
471 F.3d 315, 329 (2d Cir. 2006).
20 Accordingly, the only issue before us is whether the agency
21 erred in denying withholding of removal.
22
3
1 The BIA has defined persecution as a “threat to the
2 life or freedom of, or the infliction of suffering or harm
3 upon, those who differ in a way regarded as offensive.”
4 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
5 overruled, in part, on other grounds, INS v.
6 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.
7 U.S. Dep’t of Justice,
433 F.3d 332, 342 (2d Cir. 2006).
8 The harm must be sufficiently severe, rising above “mere
9 harassment.”
Ivanishvili, 433 F.3d at 341. Here, the
10 agency addressed the harassment and intimidation described
11 by Petitioners, including visits at their home, threats by
12 the Maoists, and one incident in which a Maoist hit Pasang
13 Sawa Sherpa on the shoulder with the butt of a gun. The
14 agency reasonably concluded that, considered cumulatively,
15 these incidents were insufficiently severe to constitute
16 persecution. See id.; see also Gui Ci Pan v. U.S. Attorney
17 Gen.,
449 F.3d 408, 412 (2d Cir. 2006).
18 Petitioners also argued that, in addition to their past
19 persecution, they fear future persecution if they return to
20 Nepal, because a Maoist was allegedly killed by the police
21 after leaving Petitioners’ home, and the Maoists allegedly
22 thought Petitioners were responsible. However, as noted by
4
1 the IJ, Petitioners conceded that they did not witness the
2 alleged incident, and provided no corroboration even though
3 evidence was reasonably available. We have held that the
4 agency may require corroboration despite otherwise credible
5 testimony. See Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5
6 (2d Cir. 2009) (holding that “while a failure to corroborate
7 can suffice, without more, to support a finding that an
8 alien has not met his burden of proof, a failure to
9 corroborate cannot, without more, support an adverse
10 credibility determination”). Despite Petitioners’ arguments
11 that their testimony was sufficient to demonstrate that they
12 would be persecuted in Nepal, it was not unreasonable for
13 the agency to require corroborating evidence, as
14 Petitioners’ testimony consisted solely of recounting what
15 they had been told by other individuals. See
id. at 196-97;
16 see also 8 U.S.C. § 1158(b)(1)(B)(i).
17 When an IJ “determines that the applicant should
18 provide evidence that corroborates otherwise credible
19 testimony, such evidence must be provided unless the
20 applicant does not have the evidence and cannot reasonably
21 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Here,
22 the IJ identified the type of corroborating evidence that
23 Petitioners should have presented, including documentation
5
1 regarding the death of the Maoist, as well as any evidence
2 indicating that the Maoists have come looking for them,
3 harmed their family, or confiscated their property. In
4 their appeal to the BIA, Petitioners did not sufficiently
5 address or explain why such evidence was not reasonably
6 available. Consequently, substantial evidence supports the
7 agency’s determination that Petitioners could have
8 reasonably provided corroborating evidence, and without any
9 corroborating evidence, failed to meet their burden of
10 showing they would be persecuted in Nepal. See 8 U.S.C.
11 § 1252(b)(4); Diallo v. INS, 232 F.3d 279, 290 (2d Cir.
12 2000); see also Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
13 Cir. 2005). Because Petitioners were unable to show either
14 past persecution or a clear probability of future
15 persecution in Nepal, the agency did not err in denying
16 their application for withholding of removal. See 8 C.F.R.
17 § 1208.16(b)(1); Ramsameachire v. Ashcroft,
357 F.3d 169,
18 178 (2d Cir. 2004).
19 For the foregoing reasons, the petition for review is
20 DISMISSED in part and DENIED in part. As we have completed
21 our review, any stay of removal that the Court previously
22 granted in connection with this petition is VACATED, and any
23 pending motion for a stay of removal in this petition is
6
1 DISMISSED as moot. Any pending request for oral argument in
2 this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
7
