15-61
Sherpa v. Lynch
BIA
Segal, IJ
A200 748 026
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of July, two thousand sixteen.
5
6 PRESENT: REENA RAGGI,
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 _____________________________________
11
12 SAMDEN SHERPA,
13 Petitioner,
14
15 v. 15-61
16 NAC
17 LORETTA E. LYNCH, UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Stuart Altman, Esq., New York,
23 New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal
26 Deputy Assistant Attorney
27 General; Jennifer P. Williams,
28 Senior Litigation Counsel; Neelam
1 Ihsanullah, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, and DECREED that the petition for review is
9 DENIED.
10 Petitioner Samden Sherpa, a native and citizen of Nepal,
11 seeks review of a December 17, 2014 decision of the BIA affirming
12 a July 25, 2013 decision of an Immigration Judge (“IJ”) denying
13 Sherpa’s application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). See In
15 re Samden Sherpa, No. A200 748 026 (B.I.A. Dec. 17, 2014), aff’g
16 No. A200 748 026 (Immig. Ct. N.Y.C. July 25, 2013). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case, which we reference only as
19 necessary to explain our decision to deny the petition for
20 review.
21 Under the circumstances of this case, where the BIA has
22 affirmed the decision of the IJ on grounds that closely track
23 her reasoning, we review both the BIA’s decision and the IJ’s
24 decision “for the sake of completeness.” Wangchuck v. U.S.
25 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
2
1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
3 165–66 (2d Cir. 2008). For asylum applications like Sherpa’s,
4 governed by the REAL ID Act, the agency may, “[c]onsidering the
5 totality of the circumstances, . . . base a credibility
6 determination on the demeanor, candor, or responsiveness of the
7 applicant or witness, the inherent plausibility of the
8 applicant’s or witness’s account,” and inconsistencies in an
9 applicant’s statements and other record evidence “without
10 regard to whether” they go “to the heart of the applicant’s
11 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.
12 Mukasey, 534 F.3d at 163-64. Here, the IJ’s adverse
13 credibility determination is supported by substantial
14 evidence.
15 The IJ reasonably relied on inconsistencies between
16 Sherpa’s testimony and the documentary evidence. Sherpa
17 testified that Maoists targeted his family in Nepal;
18 specifically, that in June 2010 four Maoists beat his wife.
19 When questioned about his wife’s injuries, Sherpa testified
20 that his wife did not seek medical treatment because the Maoists
21 “only slapped her two, four times and gave her life threat and
22 then left.” A.R. 196.
3
1 As the IJ found, Sherpa’s documentary evidence
2 contradicted his testimony. The hospital report he submitted
3 showed that his wife was admitted to the hospital in June 2010,
4 “in the state of unconscious due to [injuries] from the physical
5 assault” and with extensive bruising and a broken nose, and was
6 treated “for 15 days and discharged while she was able to walk.”
7 Id. at 325. When asked to explain the discrepancy, Sherpa
8 admitted that his wife sent him the report and that he had seen
9 it, but “forgot.” Id. at 84. After additional questioning,
10 Sherpa testified he did not remember the report because he “had
11 a lot of tensions about [his] family all the time.” Id. at 93.
12 The IJ was not required to credit Sherpa’s explanation for
13 the omission given the seriousness of his wife’s injuries and
14 his testimony that he asked his wife to obtain and send him the
15 report. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
16 2005).
17 The adverse credibility determination is further supported
18 by Sherpa’s inconsistent testimony regarding his questioning
19 by Maoists. An IJ may rely on testimony that is internally
20 inconsistent or an applicant’s lack of responsiveness to
21 questioning. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover,
22 this court pays “particular deference” to findings based on the
4
1 adjudicator’s observation of the applicant’s demeanor, “in
2 recognition of the fact that the IJ’s ability to observe the
3 witness’s demeanor places [her] in the best position to evaluate
4 whether apparent problems in the witness’s testimony suggest
5 a lack of credibility or, rather, can be attributed to an
6 innocent cause such as difficulty understanding the question.”
7 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
8 2005) (internal quotation marks omitted).
9 When testifying about Maoists coming to his home in 2009,
10 Sherpa testified that they asked him about living in the United
11 States and, after that questioning, told him they hated the
12 United States. When asked by his own attorney to specify what
13 questions the Maoists asked, he reiterated that they accused
14 him of bringing western culture to Nepal. When asked to
15 clarify, he again stated that the Maoists hated Americans. At
16 that point, the IJ interjected, noted the lack of
17 responsiveness, and asked the question again. Sherpa
18 ultimately said that the Maoists did not ask questions, but
19 demanded money. The IJ reasonably relied on the
20 unresponsiveness and internal inconsistency of this testimony.
21 See 8 U.S.C. § 1158(b)(1)(B)(iii).
22 These inconsistencies suffice to support an adverse
5
1 credibility determination. In a post-REAL ID Act case, “an IJ
2 may rely on any inconsistency or omission in making an adverse
3 credibility determination as long as the ‘totality of the
4 circumstances’ establishes that an asylum applicant is not
5 credible.” Xiu Xia Lin v. Mukasey, 534 F.3d at 167 (quoting
6 8 U.S.C. § 1158(b)(1)(B)(iii)). The inconsistencies here
7 easily satisfy that standard as they relate to the basis of
8 Sherpa’s claim—his own interaction with the Maoists and the
9 Maoists’ attack on his wife. See Xian Tuan Ye v. Dep’t of
10 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).
11 In addition, the lack of reliable corroborating evidence
12 further supports the IJ’s adverse credibility determination.
13 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
14 The IJ reasonably afforded little weight to the police and
15 hospital reports of the attack on Sherpa’s wife because Sherpa
16 provided inconsistent testimony about the attack and resulting
17 medical care. Similarly, the IJ acted within her discretion
18 in giving diminished weight to an unauthenticated medical
19 certificate and to Sherpa’s father’s affidavit. See id.
20 Nor did the IJ fail to give proper weight to the testimony
21 of Sherpa’s brother, who had been awarded asylum, or to consider
22 country reports. Although the IJ did find Sherpa’s brother
6
1 credible, his testimony was limited to his own political
2 activities in Nepal and what Sherpa had told him with respect
3 to his own experiences. Accordingly, this testimony could not
4 rehabilitate Sherpa’s testimony, as Sherpa’s brother had no
5 independent knowledge of Sherpa’s experiences. And, contrary
6 to Sherpa’s contention, the IJ did consider the proffered
7 country reports, which also do not cure the inconsistencies in
8 Sherpa’s testimony.
9 Given the inconsistencies, omissions, unresponsive
10 testimony, and lack of reliable corroborating evidence, the
11 totality of the circumstances supports the adverse credibility
12 determination. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
13 Mukasey, 534 F.3d at 165-66. This finding is dispositive of
14 asylum, withholding of removal, and CAT relief, as all three
15 claims were based on the same factual predicate. See Paul v.
16 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006) (withholding);
17 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
18 Cir. 2005) (CAT).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
7
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
8