11-3175-ag
Sherpa v. Holder
BIA
Elstein, IJ
A097 849 206
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 22nd day of June, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, Jr.,
10 Circuit Judges.
11 _____________________________________
12
13 RINJI SHERPA,
14 Petitioner,
15
16 v. 11-3175-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Julie Mullaney, Mount Kisco, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Christopher C. Fuller,
28 Deputy Chief; Alison Marie Igoe,
29 Senior Counsel for National
30 Security, Office of Immigration
31 Litigation, United States Department
32 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 Petitioner Rinji Sherpa, a native and citizen of Nepal,
6 seeks review of a July 11, 2011, order of the BIA, affirming
7 a September 9, 2009, decision of an Immigration Judge (“IJ”)
8 denying his application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Rinji Sherpa, No. A097 849 206 (B.I.A. July 11, 2011),
11 aff’g No. A097 849 206 (Immig. Ct. N.Y. City Sept. 9, 2009).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 We review both the BIA’s and IJ’s opinions, including
15 the portions of the IJ’s decision not explicitly discussed
16 by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394
17 (2d Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 In addition to the statutory requirement that
21 petitioners exhaust each category of relief they seek,
22 8 U.S.C. § 1252(d)(1), we require petitioners to raise
2
1 specific issues with the BIA that are later raised in this
2 Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).
3 This issue exhaustion requirement is “mandatory,” and where,
4 as here, “the government points out . . . that an issue . .
5 . was not properly raised below, the court must decline to
6 consider that issue,” absent an extraordinary situation.
7 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1
8 (2d Cir. 2007) (citing Marrero Pichardo v. Ashcroft, 374
9 F.3d 46, 52-53 (2d Cir. 2004)).
10 Sherpa failed to exhaust his challenges to the IJ’s
11 adverse credibility determination before the BIA. Indeed,
12 the BIA explicitly noted that Sherpa failed to identify any
13 factual or legal errors in the IJ’s adverse credibility
14 determination or even mention credibility on appeal, and
15 Sherpa does not challenge this finding in his brief to this
16 Court. While we may consider an issue addressed by the BIA
17 that was not raised by an applicant in the course of an
18 appeal, see Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir.
19 1993), we decline to do so here, as excusing Sherpa’s
20 failure to exhaust would not serve one of the central
21 purposes of issue exhaustion, which is to give “the agency
22 responsible for construing and applying the immigration laws
3
1 and implementing regulations . . . a full opportunity to
2 consider a petitioner’s claims before they are submitted for
3 review by a federal court.” Theodoropoulos v. INS, 358 F.3d
4 162, 171 (2d Cir. 2004). See also Lin Zhong, 480 F.3d at
5 122 (reaffirming that this Court “may consider only those
6 issues that formed the basis for [the BIA’s] decision”).
7 Given that Sherpa’s asylum, withholding of removal, and
8 CAT claims shared the same factual predicate, Sherpa has not
9 shown that the agency erred in finding him ineligible for
10 relief due to his lack of credibility. See Paul v.
11 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Moreover,
12 because the IJ’s adverse credibility determination is
13 dispositive of Sherpa’s petition for review, we decline to
14 consider his challenge to the agency’s alternative basis for
15 denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
4