Filed: Nov. 20, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2524 Sherpa v. Lynch BIA Mulligan, IJ A087 646 994 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 N
Summary: 14-2524 Sherpa v. Lynch BIA Mulligan, IJ A087 646 994 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 NO..
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14-2524
Sherpa v. Lynch
BIA
Mulligan, IJ
A087 646 994
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
20th day of November, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
LAKPA SONAM SHERPA,
Petitioner,
v. 14-2524
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Lehach, Lehach & Filippa,
LLP, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Todd Cochran,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Petitioner Lakpa Sonam Sherpa, a native and citizen of
Nepal, seeks review of a July 2, 2014, decision of the BIA
affirming an August 26, 2013, decision of an Immigration Judge
(“IJ”) denying Sherpa’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Lakpa Sonam Sherpa, No. A087 646 994 (B.I.A.
July 2, 2014), aff’g No. A087 646 994 (Immig. Ct. N.Y. City Aug.
26, 2013). 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. 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); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
2
165-66 (2d Cir. 2008) (per curiam). For asylum applications
like Sherpa’s, governed by the REAL ID Act, the agency may,
“[c]onsidering the totality of the circumstances . . . base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account,” and
inconsistencies in an applicant’s statements and other record
evidence “without regard to whether” they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin, 534 F.3d at 163-64. The IJ’s adverse credibility
determination is supported by substantial evidence.
Sherpa claimed that he was beaten and threatened by members
of the Nepalese Maoist party when he refused to join and instead
joined the Congress Party. Sherpa testified that he was beaten
by Maoists in 2003, but his asylum application made no mention
of the beating. Sherpa explained that the person who prepared
his application must have forgotten to include the incident.
This inconsistency is supported by the record. See Xiu Xia Lin,
534 F.3d at 163-64, 166. Moreover, the IJ was not required to
credit Sherpa’s explanation for it. Majidi v. Gonzales,
430
F.3d 77, 80-81 (2d Cir. 2005).
3
In addition, the IJ reasonably relied on other
discrepancies in the record. Sherpa testified that he had two
encounters with Maoists in June 2003, but he later stated that
he had three such encounters. Sherpa also testified that he
did not report any of his contacts with Maoists to police after
November 2004, but the record contains a complaint filed in
September 2005. Sherpa stated that Maoists threatened his
father and demanded one million rupees from him in July of 2009;
however, while Sherpa’s father’s letter does mention a demand
for one million rupees, it does not say he was threatened by
Maoists. Finally, Sherpa was asked whether his father still
lived in Sherpa’s childhood home, and he said that he did; he
immediately changed his answer, however, stating that his
father lived in the same village. The IJ reasoned that Sherpa
changed his answer because he had written in his application
that Maoists had burned his family’s home. The IJ was
entitled to rely on the cumulative effect of these
discrepancies. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.
2006).
Finally, the IJ relied on his observations of Sherpa’s
demeanor in finding him not credible. We generally afford
4
particular deference to an IJ’s assessment of an applicant’s
demeanor, especially when those observations are bolstered by
specific inconsistencies in the record. Jin Chen v. U.S. Dep’t
of Justice, 426 F.3d 104, 113 (2d Cir. 2005); Li Hua Lin v. U.S.
Dep't of Justice,
453 F.3d 99, 109 (2d Cir. 2006).
Considering the inconsistencies in the record, as well as
the IJ’s demeanor finding, the IJ’s adverse credibility
determination is supported by substantial evidence. 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66. This
finding was sufficient to deny asylum, withholding of removal,
and CAT relief, as all three claims were based on the same
factual predicate. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
Cir. 2006) (withholding); Xue Hong Yang v. U.S. Dep’t of
Justice,
426 F.3d 520, 523 (2d Cir. 2005) (CAT). Accordingly,
we decline to reach Sherpa’s challenge to the IJ’s pretermission
of his asylum application as untimely.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
5
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
6
