20-4010 Sherpa v. Garland BIA
Cassin, IJ
A208 927 545
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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of February, two thousand twenty- 5 three. 6 7 PRESENT: 8 ROBERT D. SACK, 9 DENNY CHIN, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 NGADOMA SHERPA, 15 Petitioner, 16 17 v. 20-4010 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., 25 New York, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Brianne Whelan
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1 Cohen, Rebecca Hoffberg Phillips, 2 Senior Litigation Counsel, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Ngadoma Sherpa, a native and citizen of Nepal, 11 seeks review of an October 29, 2020 decision of the BIA 12 affirming a July 27, 2018 decision of an Immigration Judge 13 (“IJ”) denying her application for asylum, withholding of 14 removal, and protection under the Convention Against Torture 15 (“CAT”). In re Ngadoma Sherpa, No. A208 927 545 (B.I.A. Oct. 16 29, 2020), aff’g No. A208 927 545 (Immig. Ct. N.Y. City July 17 27, 2018). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 We have reviewed the decisions of both the IJ and the 20 BIA. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 21 528 (2d Cir. 2006). The applicable standards of review are 22 well established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he 23 administrative findings of fact are conclusive unless any 24 reasonable adjudicator would be compelled to conclude to the
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1 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 2 Cir. 2018) (reviewing adverse credibility determination 3 “under the substantial evidence standard”). 4 “Considering the totality of the circumstances, and all 5 relevant factors, a trier of fact may base a credibility 6 determination on the demeanor, candor, or responsiveness of 7 the applicant . . . , the consistency between the applicant’s 8 or witness’s written and oral statements . . . , the internal 9 consistency of each such statement, [and] the consistency of 10 such statements with other evidence of record . . . without 11 regard to whether an inconsistency, inaccuracy, or falsehood 12 goes to the heart of the applicant’s claim, or any other 13 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 14 defer . . . to an IJ’s credibility determination unless . . . 15 it is plain that no reasonable fact-finder could make such an 16 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 17 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d 18 at 76. Here, substantial evidence supports the adverse 19 credibility determination. 20 As an initial matter, the agency did not err in relying 21 on the record of Sherpa’s credible fear interview because it
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1 bears sufficient indicia of reliability: while not a 2 transcript, the interview is “memorialized in a typewritten 3 document setting forth the questions put to [Sherpa] as well 4 as her responses”; the interview was conducted with a Nepali 5 interpreter, whom Sherpa stated she could understand; and the 6 asylum officer not only explained the purpose of the interview 7 and the fact that Sherpa could seek clarification at any 8 point, but also asked Sherpa questions about past and future 9 harm that were designed to elicit an asylum claim. Ming 10 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). Thus, the 11 agency reasonably relied on inconsistencies between that 12 interview and Sherpa’s in court testimony that call into 13 question the basis of Sherpa’s claim. 14 Sherpa stated in her credible fear interview that she 15 had been married twice, that she and her first husband were 16 threatened by Maoists and fled to Kathmandu together, and 17 that she married her second husband a year before the 18 interview. She also told the asylum officer that she owned 19 a shop in Nepal and worked as a housekeeper and a nanny. 20 However, she testified before the IJ that she had never been 21 married, she was a Buddhist nun, and she had lived in a
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1 monastery for 15 years, until 2009. The agency did not err 2 in relying on these discrepancies, particularly as they call 3 into question Sherpa’s claim that Maoists dragged her out of 4 the monastery and beat her. See Xiu Xia Lin, 534 F.3d at 167 5 (noting that the agency “may rely on any inconsistency 6 . . . as long as the ‘totality of the circumstances’ 7 establishes that an asylum applicant is not credible” 8 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))). 9 The agency also reasonably relied on Sherpa’s differing 10 accounts of her involvement in the Nepali Congress Party 11 (“NCP”) and her alleged physical harm. In her credible fear 12 interview, Sherpa told the asylum officer that she voted for 13 the NCP but was not a member and had not volunteered for the 14 party. She also stated that she had never been physically 15 harmed by Maoists, adding that they tried their best to harm 16 her but that she had avoided them by living in hiding at 17 friends’ houses. But Sherpa testified to the IJ that she 18 campaigned for the NCP in her village and was beaten by 19 Maoists on two occasions -- once at the monastery in 2008 and 20 again at her home in 2013. These discrepancies likewise 21 provide substantial support for the adverse credibility
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1 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 2 446 F.3d 289, 295 (2d Cir. 2006) (holding that a “material 3 inconsistency in an aspect of [the] story that served as an 4 example of the very persecution from which [Petitioner] 5 sought asylum . . . afforded substantial evidence to support 6 the adverse credibility finding”); see also Likai Gao v. Barr, 7 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single 8 inconsistency might preclude an alien from showing that an IJ 9 was compelled to find him credible. Multiple inconsistencies 10 would so preclude even more forcefully.”). Moreover, the 11 agency was not required to accept Sherpa’s explanation that 12 her smugglers told her to lie in her credible fear interview. 13 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 14 petitioner must do more than offer a plausible explanation 15 for his inconsistent statements to secure relief; he must 16 demonstrate that a reasonable fact-finder would be compelled 17 to credit his testimony.” (quotation marks omitted)). 18 The adverse credibility finding is further bolstered by 19 the IJ’s demeanor finding, to which we defer, see Li Hua Lin 20 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006), 21 and the absence of any reliable corroboration for Sherpa’s
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1 testimony, Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2 2007) (“An applicant’s failure to corroborate . . . her 3 testimony may bear on credibility, because the absence of 4 corroboration in general makes an applicant unable to 5 rehabilitate testimony that has already been called into 6 question.”). The IJ did not err in affording minimal weight 7 to Sherpa’s supporting letters because they were inconsistent 8 with her testimony, prepared by interested witnesses or 9 witnesses not available for cross-examination, or they did 10 not confirm the alleged persecution. See Likai Gao, 968 F.3d 11 at 149 (concluding that “the IJ acted within her discretion 12 in according . . . little weight” to letters from the 13 applicant’s wife and friend “because the declarants 14 (particularly [the applicant’s] wife) were interested parties 15 and neither was available for cross-examination”); Y.C. v. 16 Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We generally 17 defer to the agency’s evaluation of the weight to be afforded 18 an applicant’s documentary evidence.”). 19 In sum, the multiple inconsistencies and lack of reliable 20 corroboration provide substantial evidence in support of the 21 IJ’s adverse credibility determination. See Likai Gao, 968
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1 F.3d at 145 n.8; Biao Yang, 496 F.3d at 273. The adverse 2 credibility determination is dispositive of Sherpa’s 3 application for asylum, withholding of removal, and CAT 4 relief because all three forms of relief were based on the 5 same discredited factual predicate. See Paul v. Gonzales, 6 444 F.3d 148, 156–57 (2d Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED.
10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court