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
3
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
4
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
5
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
6
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
7
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