Sherpa v. Holder

11-3336-ag Sherpa v. Holder BIA Vomacka, IJ A087 560 889 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 1st day of May, two thousand twelve. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MINMAR SHERPA, 14 Petitioner, 15 16 v. 11-3336-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, 24 N.Y. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Richard M. Evans, Assistant 28 Director; Ann Carroll Varnon, Trial 29 Attorney, Office of Immigration 30 Litigation, United States Department 31 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Minmar Sherpa, a native and citizen of Nepal, seeks 6 review of a July 21, 2011, order of the BIA affirming the 7 May 19, 2010, decision of Immigration Judge (“IJ”) Alan A. 8 Vomacka, which denied her application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Minmar Sherpa, No. A087 560 11 889 (B.I.A. July 21, 2011), aff’g A087 560 889 (Immig. Ct. 12 N.Y. City May 19, 2010). We assume the parties’ familiarity 13 with the underlying facts and procedural history in this 14 case. 15 Under the circumstances of this case, we have reviewed 16 the decision of the IJ as supplemented by the BIA. See Yan 17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well established. 19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. 20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 For applications such as Sherpa’s, governed by the 22 amendments made to the Immigration and Nationality Act by 23 the REAL ID Act of 2005, the agency may, considering the 2 1 totality of the circumstances, base a credibility finding on 2 the applicant’s “demeanor, candor, or responsiveness,” the 3 plausibility of her account, and inconsistencies in her 4 statements, without regard to whether they go “to the heart 5 of the applicant’s claim.” See 8 U.S.C. § 6 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 7 167 (2d Cir. 2008). We will “defer . . . to an IJ’s 8 credibility determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 11 The IJ’s adverse credibility determination is supported 12 by substantial evidence. The IJ reasonably based his 13 credibility finding on the following: (1) Sherpa’s 14 inconsistent testimony regarding who sent the demand letter 15 she allegedly received from Maoists; (2) the inconsistencies 16 between her testimony and her application regarding the year 17 she fled to Kathmandu and the year that Maoists attempted to 18 kidnap her; (3) her failure to mention in her application 19 her discovery that Maoists worked with her in a Kathmandu 20 restaurant; and (4) the memorized nature of her testimony. 21 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 22 Furthermore, the IJ reasonably afforded minimal weight to 3 1 Sherpa’s personal evidence due to the unusually specific and 2 detailed nature of her testimony regarding events that 3 occurred six to ten years earlier. Cf. Xiao Ji Chen v. U.S. 4 Dep’t of Justice, 471 F.3d 315, 337-38, 338 n.17 (2d Cir. 5 2006). 6 Given the omission, internally inconsistent testimony, 7 inconsistencies between Sherpa’s testimony and her 8 application, the lack of reliable corroboration, and the 9 IJ’s negative demeanor finding, the totality of the 10 circumstances supports the IJ’s adverse credibility 11 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 12 Lin, 534 F.3d at 167. Because the IJ reasonably found that 13 Sherpa’s background evidence did not demonstrate an 14 objective basis for fearing persecution or torture, the only 15 evidence of a threat to Sherpa’s life or freedom depended on 16 her credibility. The adverse credibility determination is 17 also fatal to Sherpa’s claim for withholding of removal and 18 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d 19 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 20 520, 523 (2d Cir. 2005). 21 For the foregoing reasons, the petition for review is 22 DENIED. Any pending motion for a stay of removal in this 4 1 petition is DISMISSED as moot. Any pending request for oral 2 argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 5