Sherpa v. Garland

Court: Court of Appeals for the Second Circuit
Date filed: 2021-04-22
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Combined Opinion
     19-1323
     Sherpa v. Garland
                                                                               BIA
                                                                         Donnolo, IJ
                                                                       A206 626 195
                              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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 22nd day of April, two thousand twenty-one.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8            SUSAN L. CARNEY,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   YANGLAMU SHERPA,
14            Petitioner,
15
16                       v.                                  19-1323
17                                                           NAC
18   MERRICK B. GARLAND, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent. *
21   _____________________________________
22
23
24   FOR PETITIONER:                     Ramesh K. Shrestha, Esq., New
25                                       York, NY.
26

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Merrick B. Garland is automatically substituted as Respondent.
 1   FOR RESPONDENT:           Brian M. Boynton, Acting Assistant
 2                             Attorney General; Melissa Neiman-
 3                             Kelting , Assistant Director;
 4                             Christopher Buchanan, Trial
 5                             Attorney, Office of Immigration
 6                             Litigation, United States
 7                             Department of Justice, Washington,
 8                             DC.

 9       UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Petitioner Yanglamu Sherpa, a native and citizen of

14   Nepal, seeks review of an April 16, 2019 decision of the BIA,

15   affirming a February 2, 2018 decision of an Immigration Judge

16   (“IJ”) denying asylum, withholding of removal, and protection

17   under the Convention Against Torture (“CAT”).    In re Yanglamu

18   Sherpa, No. A 206 626 195 (B.I.A. Apr. 16, 2019), aff’g No. A

19   206 626 195 (Immigr. Ct. N.Y.C. Feb. 2, 2018).    We assume the

20   parties’ familiarity with the underlying facts and procedural

21   history.

22       We have reviewed the IJ’s decision as modified by the

23   BIA and reach only the adverse credibility determination on

24   which the BIA relied.   See Xue Hong Yang v. U.S. Dep’t of

25   Just., 426 F.3d 520, 522 (2d Cir. 2005).         The applicable

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 1   standards of review are well established.          See 8 U.S.C.

 2   § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

 3   Cir. 2018).

 4       “Considering the totality of the circumstances, and all

 5   relevant factors, a trier of fact may base a credibility

 6   determination on . . . the consistency between the applicant’s

 7   or witness’s written and oral statements . . . , the internal

 8   consistency of each such statement, [and] the consistency of

 9   such statements with other evidence of record . . . without

10   regard to whether an inconsistency, inaccuracy, or falsehood

11   goes to the heart of the applicant’s claim. . . .”     8 U.S.C.

12   § 1158(b)(1)(B)(iii).    “We defer . . . to an IJ’s credibility

13   determination unless, from the totality of the circumstances,

14   it is plain that no reasonable fact-finder could make such an

15   adverse credibility ruling.”        Xiu Xia Lin v. Mukasey, 534

16   F.3d 162, 167 (2d Cir. 2008) (per curiam); accord Hong Fei

17   Gao, 891 F.3d at 76.    Here, substantial evidence supports the

18   agency’s determination that Sherpa was not credible as to her

19   claim that Maoists attacked her on account of her membership

20   in the Nepal Women’s Association.

21       Sherpa’s challenge to the reliability of the record of


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 1   her credible fear interview is unexhausted.            See Lin Zhong

 2   v. U.S. Dep’t of Just., 480 F.3d 104, 107, 122-24 (2d Cir.

 3   2007) (holding that issue exhaustion generally is mandatory).

 4   In any event, we conclude that the interview record “bears

 5   sufficient        indicia    of   reliability     to   warrant      its

 6   consideration by the agency” given that it is memorialized in

 7   a typed list of questions and answers, includes questions

 8   designed to elicit an asylum claim, and was conducted through

 9   a Nepali interpreter.        Ming Zhang v. Holder, 585 F.3d 715,

10   725 (2d Cir. 2009).

11        The agency thus reasonably relied on inconsistencies

12   between Sherpa’s statements at her credible fear interview

13   and her hearing testimony regarding whether Maoists ever

14   physically harmed her on account of her participation in the

15   women’s organization.        The inconsistencies about whether and

16   why she was physically harmed provide substantial evidence

17   for the adverse credibility determination because they relate

18   to   the   most    recent   allegation   of   persecution,   the   sole

19   incident of physical harm, and whether the harm was on account

20   of a protected ground as required to state a claim for asylum

21   and withholding of removal.         See Xian Tuan Ye v. Dep’t of


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 1   Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam)

 2   (holding that “a material inconsistency in an aspect of [an

 3   applicant’s] story that served as an example of the very

 4   persecution from which [s]he sought asylum . . . afforded

 5   substantial     evidence      to    support   the    adverse    credibility

 6   finding.”) (internal quotation marks and citation omitted).

 7   The agency was not compelled to accept Sherpa’s explanation

 8   that she was nervous and wanted to forget past events.                     See

 9   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

10   petitioner must do more than offer a plausible explanation

11   for h[er] inconsistent statements to secure relief; [s]he

12   must    demonstrate    that    a     reasonable     fact-finder    would   be

13   compelled to credit h[er] testimony.”) (internal quotation

14   marks and citation omitted).

15          Having   questioned         Sherpa’s   credibility,      the   agency

16   reasonably relied further on her failure to rehabilitate her

17   testimony with reliable corroborating evidence.                    See Biao

18   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

19   curiam) (“An applicant’s failure to corroborate his or her

20   testimony may bear on credibility, because the absence of

21   corroboration     in   general        makes   an    applicant     unable   to


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 1   rehabilitate testimony that has already been called into

 2   question.”).        The   agency    reasonably     declined    to   credit

 3   letters from Sherpa’s friends and family in Nepal because the

 4   authors were not available for cross-examination.               See Y.C.

 5   v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013); see also In

 6   re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

 7   (finding letters from friends and family insufficient to

8    provide substantial support for claims because they were from

9    interested    witnesses     not     subject   to   cross-examination),

10   abrogated on other grounds by Hui Lin Huang v. Holder, 677

11   F.3d 130, 133–38 (2d Cir. 2012).          Nor did the agency err in

12   declining to credit        medical documentation prepared three

13   years after the alleged treatment and based, in part, on

14   information provided by Sherpa’s father.            See Y.C., 741 F.3d

15   at 332; Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir.

16   2008).

17       Given     the    agency’s      corroboration    findings    and   the

18   inconsistencies in Sherpa’s statements, the agency’s adverse

19   credibility    determination        is   supported     by     substantial

20   evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v.

21   Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single


                                          6
 1   inconsistency might preclude an alien from showing that an IJ

 2   was    compelled   to   find    h[er]   credible.         Multiple

 3   inconsistencies would so preclude even more forcefully.”).

4    That determination was dispositive of asylum, withholding of

5    removal, and CAT relief because all three claims were based

6    on the same factual predicate.       See Paul v. Gonzales, 444

7    F.3d 148, 156–57 (2d Cir. 2006).

 8         For the foregoing reasons, the petition for review is

 9   DENIED.   All pending motions and applications are DENIED and

10   stays VACATED.

11                                  FOR THE COURT:
12                                  Catherine O’Hagan Wolfe,
13                                  Clerk of Court




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