09-2942-ag
Sherpa v. Holder
BIA
Hom, IJ
A093 408 699
A093 408 700
A093 408 701
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 22 nd day of March, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 MINGMA DORJE SHERPA, PUNAM SHIRPA,
14 DAWA LHAMU SHERPA,
15 Petitioner,
16
17 v. 09-2942-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Khaghendra Gharti-Chhetry, Chhetry &
25 Associates, P.C., New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Michelle Gorden Latour,
1 Assistant Director; Tracie N. Jones,
2 Trial Attorney, Office of
3 Immigration Litigation, Civil
4 Division, United States Department
5 of Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 The Petitioners, Mingma Dorje Sherpa and his daughter
12 Dawa Lhamu Sherpa, both natives and citizens of Nepal, along
13 with his wife, Punam Sherpa, a native of India and a citizen
14 of Nepal, all seek review of a June 11, 2009, order of the
15 BIA affirming the August 27, 2007, decision of Immigration
16 Judge (“IJ”) Sandy K. Hom denying their application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). * In re Sherpa, Nos.
19 A093 408 699/700/701 (B.I.A. June 11, 2009), aff’g Nos. A093
20 408 699/700/701 (Immig. Ct. N.Y. City Aug. 27, 2007). We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 Under the circumstances of this case, we review the
*
Mingma Sherpa was the lead applicant, including his
wife and daughter as derivative applicants on his asylum
application.
2
1 IJ’s decision as modified by the BIA decision, omitting the
2 arguments for denying relief that were rejected by the BIA.
3 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
4 522 (2d Cir. 2005). “We defer . . . to an IJ’s credibility
5 determination unless, from the totality of the
6 circumstances, it is plain that no reasonable factfinder
7 could make such an adverse credibility ruling.” Xiu Xia Lin
8 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see 8 U.S.C.
9 § 1158(b)(1)(B)(iii);.
10 Substantial evidence supports the IJ’s adverse
11 credibility determination. In evaluating the Sherpas’
12 credibility, the IJ found that: (1) Mingma and Punam
13 testified inconsistently regarding when and why they first
14 sought to leave Nepal; and (2) Mingma testified
15 inconsistently regarding the fate of a fellow co-worker who
16 reported similar Maoist threats to the U.S. Embassy. In
17 their brief, the Sherpas acknowledge the inconsistencies in
18 their testimony, but argue that they are too minor to
19 support an adverse credibility determination. Contrary to
20 the Sherpas’ argument, “an IJ may rely on any inconsistency
21 or omission in making an adverse credibility determination
22 as long as the ‘totality of the circumstances’ establishes
3
1 that an asylum applicant is not credible.” Xiu Xia Lin, 534
2 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))
3 (emphasis in original); see Matter of J-Y-C-, 24 I. & N.
4 Dec. 260, 265 (BIA 2007). Moreover, although the Sherpas
5 argue that they adequately explained their inconsistent
6 testimony, a reasonable factfinder would not have been
7 compelled to credit their explanations. See Majidi v.
8 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 Because the Sherpas’ claims for withholding of removal
10 and CAT relief share the same factual predicate as their
11 asylum claim, the IJ’s adverse credibility finding is fatal
12 to those claims as well. See Paul v. Gonzales, 444 F.3d
13 148, 156-57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
4