Filed: Sep. 09, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1272 Sherpa v. Lynch 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 PA
Summary: 14-1272 Sherpa v. Lynch 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 PAR..
More
14-1272
Sherpa v. Lynch
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of September, two thousand fifteen.
5
6 PRESENT: RALPH K. WINTER,
7 JOHN M. WALKER, Jr.,
8 DENNIS JACOBS,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 LHAKPA NURU SHERPA,
13 Petitioner,
14
15 -v.- 14-1272
16
17 LORETTA E. LYNCH, UNITED STATES
18 ATTORNEY GENERAL,*
19 Respondent.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR PETITIONER: H. RAYMOND FASANO,(with Ramesh
23 K. Shrestha on the brief),
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1
1 YOUMAN, MADEO & FASANO, LLP,
2 New York, New York.
3
4 FOR RESPONDENT: COLETTE J. WINSTON (with Anthony
5 C. Payne on the brief), for
6 Joyce R. Branda, Assistant
7 Attorney General, Civil
8 Division, Washington, District
9 of Columbia.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, and DECREED that the petition for review
14 is DENIED.
15
16 Petitioner Lhakpa Nuru Sherpa, a native and citizen of
17 Nepal, seeks review of a April 3, 2014 decision of the BIA
18 affirming an October 20, 2011 decision of an Immigration
19 Judge (“IJ”) denying Sherpa’s application for asylum,
20 withholding of removal, and relief under the Convention
21 Against Torture (“CAT”). We assume the parties’ familiarity
22 with the underlying facts, the procedural history, and the
23 issues presented for review.
24
25 When, as here, “the BIA adopts the decision of the IJ
26 and merely supplements the IJ’s decision” this Court
27 “review[s] the decision of the IJ as supplemented by the
28 BIA.” Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
29 The applicable standards of review are well established.
30 See 8 U.S.C. § 1252(b)(4)(B); see also Lin v. Mukasey, 534
31 F.3d 162, 165-66 (2d Cir. 2008).
32
33 For asylum applications governed by the REAL ID Act,
34 such as Sherpa’s, the IJ may, considering the totality of
35 the circumstances, base a credibility finding on an
36 applicant’s demeanor as well as omissions and
37 inconsistencies in the applicant’s testimony without regard
38 to whether they go “to the heart of the applicant’s claim.”
39 8 U.S.C. § 1158(b)(1)(B)(iii);
Lin, 534 F.3d at 165. We
40 “defer . . . to an IJ’s credibility determination unless,
41 from the totality of the circumstances, it is plain that no
42 reasonable fact-finder could make such an adverse
43 credibility ruling.”
Lin, 534 F.3d at 167. And where “the
44 IJ’s adverse credibility finding is based on specific
45 examples in the record of inconsistent statements by the
46 asylum applicant about matters material to his claim of
47 persecution, or on contradictory evidence or inherently
2
1 improbable testimony regarding such matters, a reviewing
2 court will generally not be able to conclude that a
3 reasonable adjudicator was compelled to find otherwise.”
4 Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir. 2005)
5 (internal quotation marks and citations omitted).
6 Accordingly, the “exceedingly narrow scope of our review . .
7 . is designed to ensure merely that credibility findings are
8 based upon neither a misstatement of the facts in the record
9 nor bald speculation or caprice.”
Id. at 80 (internal
10 quotation marks and citations omitted). Here, the totality
11 of the circumstances, including Sherpa’s demeanor, his
12 internally inconsistent testimony, and inconsistencies
13 between his testimony and record evidence, taken together,
14 sufficiently support the IJ’s credibility determination.
15
16 The IJ’s finding that Sherpa’s demeanor was somewhat
17 hesitant, nonresponsive, evasive and rehearsed formed the
18 basis for the IJ’s conclusion that Sherpa did not testify in
19 a forthright manner. One example cited by the IJ is on
20 direct examination, when Sherpa was asked when he joined the
21 Nepali Congress Party, Sherpa paused for a long period of
22 time and had difficulty answering the question. When
23 queried as to the hesitancy in his testimony, Sherpa gave
24 two conflicting explanations, first asserting that there
25 were no pauses, and then explaining that the hesitations in
26 his testimony were simply his way of talking. Contrary to
27 Sherpa’s assertion on appeal, the IJ properly assessed
28 Sherpa’s demeanor and supported that finding with a specific
29 record example. See Lin v. Gonzales,
446 F.3d 395, 400 (2d
30 Cir. 2006) (“Evasiveness is, of course, one of the many
31 outward signs a fact-finder may consider in evaluating
32 demeanor and in making an assessment of credibility.
33 Demeanor is virtually always evaluated subjectively and
34 intuitively, and an IJ therefore is accorded great deference
35 on this score . . . .”).
36
37 The IJ also supported its adverse credibility
38 determination by citing three inconsistencies in Sherpa’s
39 testimony. On direct examination, Sherpa testified that he
40 returned from a mountaineering expedition on April 24, 2005
41 and that he was attacked by the Maoists on June 22, 2005.
42 Subsequently, on cross-examination, Sherpa conceded that
43 during the period between April 24 and June 22, he was not
44 molested by the Maoists. At the conclusion of his
45 testimony, Sherpa was given the opportunity to rectify any
46 mistakes in his testimony and at this point, Sherpa
47 indicated that his return date from his expedition was
3
1 actually May 30, 2005. The IJ questioned Sherpa as to why
2 he initially volunteered the date of April 24, 2005 and
3 Sherpa simply stated that he made a mistake. Because of the
4 line of questioning on cross-examination pertaining to the
5 length of time Sherpa was free from danger perpetrated by
6 the Maoists, the IJ found Sherpa’s inconsistent testimony on
7 this issue to be a “significant discrepancy.” Certified
8 Administrative Record (“CAR”) at 96.
9
10 Similarly, the IJ observed that Sherpa maintained on
11 direct and cross-examination that his wife received a letter
12 from the Maoists’ sister organization, the Young Communist
13 League, in November 2009. Once Sherpa was shown a copy of
14 the letter, dated April 30, 2009, he again simply stated
15 that he made a mistake and that he was confused, despite
16 freely volunteering the November 2009 date on both direct
17 and cross-examination. Sherpa further testified on direct
18 examination that he joined the Nepali Youth Congress Party
19 on August 26, 2005 but changed this answer on cross-
20 examination to indicate that his association with the Nepali
21 Youth Congress Party actually began in 2000. As with his
22 previous answers, Sherpa offered nothing by way of
23 explanation for his discrepancy other than acknowledging
24 that he made a mistake. Thus, on this record, “the totality
25 of the circumstances supports the agency’s adverse
26 credibility determination.” Yan v. Holder, 578 F. App’x 4,
27 6 (2d Cir. 2014).
28
29 Sherpa contends that none of the IJ’s findings
30 pertaining to inconsistencies in dates should be credited
31 because of the significant differences between the Nepali
32 and Gregorian calendars. This argument was not made to the
33 IJ, and the record does not compel the conclusion that the
34 discrepancies in Sherpa’s answers were a result of
35 incongruity between the two calendars. “Our role does not
36 extend to hypothesiz[ing] excuses for the inconsistencies in
37 an asylum applicant’s testimony.” Majidi, 430 F.3d at 80
38 (internal quotation marks and citations omitted). Sherpa
39 has accordingly fallen short of prevailing on his petition.
40 See
id. (“A petitioner must do more than offer a plausible
41 explanation for his inconsistent statements to secure
42 relief; he must demonstrate that a reasonable fact-finder
43 would be compelled to credit his testimony.”) (internal
44 quotation marks and citations omitted). The IJ’s adverse
45 credibility finding was therefore sufficient to deny Sherpa
46 asylum and withholding of removal. See Hoxhallari v.
47 Gonzales,
468 F.3d 179, 184 (2d Cir. 2006). And Sherpa’s
4
1 CAT claim must be rejected because he has not shown that it
2 is more likely than not that he would be tortured by or with
3 the acquiescence of a government official acting in an
4 official capacity.
5
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.
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
14
5
