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