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
2
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
3
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
4
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
5
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
7
Sherpa v. Garland
Combined Opinion