Sherpa v. Holder

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