Filed: Mar. 27, 2017
Latest Update: Mar. 03, 2020
Summary: 14-4257 Sherpa v. Sessions BIA Wright, IJ A087 640 023 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
Summary: 14-4257 Sherpa v. Sessions BIA Wright, IJ A087 640 023 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..
More
14-4257
Sherpa v. Sessions
BIA
Wright, IJ
A087 640 023
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
27th day of March, two thousand seventeen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
PASANG DONGA SHERPA,
Petitioner,
v. 14-4257
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Stuart Altman, Law Office of Stuart
Altman, New York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jefferson B. Sessions III is automatically
substituted for former Attorney General Loretta E. Lynch as
Respondent.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Douglas
E. Ginsburg, Assistant Director;
Deitz P. Lefort, 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 Pasang Donga Sherpa, a native and citizen of
Nepal, seeks review of an October 29, 2014 decision of the BIA,
affirming a November 8, 2012 decision of an Immigration Judge
(“IJ”) denying Sherpa’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). See In re Pasang Donga Sherpa, No. A087 640 023 (B.I.A.
Oct. 29, 2014), aff’g No. A087 640 023 (Immig. Ct. N.Y.C. Nov.
8, 2012). Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA, see Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), applying well
established standards of review, see Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008). In so doing, we assume the
parties’ familiarity with the underlying facts and procedural
history of this case.
2
For asylum applications like Sherpa’s, the agency may,
“[c]onsidering the totality of the circumstances,” base a
credibility finding on inconsistencies in an asylum 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); see Xiu Xia Lin, 534 F.3d at 163-64. We
“defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Xiu
Xia
Lin, 534 F.3d at 167.
Here, the agency reasonably relied on several discrepancies
in the record in finding that Sherpa was not credible as to her
claims that Maoists threatened her, attacked her husband, and
killed her father on account of her membership in the Nepali
Congress Party. Specifically, there was an inconsistency
between Sherpa’s testimony and her record evidence regarding
whether she had burned the initial threatening letter that she
received from the Maoist. Although she testified that she had
burned the letter, she, in fact, submitted it into evidence.
When confronted with this inconsistency, Sherpa claimed that
she was nervous and had forgotten about the letter. The IJ was
not compelled to credit Sherpa’s explanation. Sherpa’s
3
testimony did not indicate that she had forgotten about the
letter; to the contrary, she remembered burning it. See Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” (citations and internal quotation marks omitted)).
Further evidentiary concerns arose because the original
death certificate for her father that Sherpa submitted was
registered and signed three months before his date of death.
A second death certificate had an updated registration date and
stated that the first document simply contained a mistake. The
IJ was not required to credit this explanation, particularly
given that the first certificate was handwritten and the
registration date was written twice on the document, making it
unlikely that the date was simply a clerical error. See Majidi,
430 F.3d at 80. Sherpa’s argument that the IJ should not have
used a translation error in her father’s death certificate
against her is misplaced. The IJ acknowledged the translation
error and did not cite it as support for the adverse credibility
determination.
4
Finally, the agency reasonably relied on inconsistencies
regarding the attack on Sherpa’s husband. Sherpa testified
inconsistently as to when the attack occurred and her allegation
that her husband was hospitalized after the attack was a detail
absent from her husband’s June 2012 letter describing the
incident. Her explanations for these inconsistencies were not
compelling. See id. In her brief, Sherpa argues that her
husband’s letter could not have included his hospitalization
because the letter was written in 2009, years before the attack.
This argument mischaracterizes the record, which includes two
letters from Sherpa’s husband, one from 2009 and another from
2012.
Furthermore, the agency reasonably found Sherpa’s
additional corroborating evidence insufficient to rehabilitate
her credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
(2d Cir. 2007); Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir.
2007).
Given these inconsistencies both within Sherpa’s testimony
and between her testimony and documentary evidence, substantial
evidence supports the agency’s adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 165-66. That
credibility finding is dispositive of asylum, withholding of
5
removal, and CAT relief because all three claims are based on
the same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
