21-6068 Sherpa v. Garland BIA Navarro, IJ A208 008 500
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 3rd day of May, two thousand twenty- 4 three. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RAYMOND J. LOHIER, JR., 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 DAWA DOLMA SHERPA, 14 Petitioner, 15 16 v. 21-6068 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Stuart Altman, Esq., New York, NY. 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney 2 General; Anthony C. Payne, Assistant 3 Director; Joseph D. Hardy, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Dawa Dolma Sherpa, a native and citizen of Nepal, seeks review
11 of a January 25, 2021 decision of the BIA affirming a November 1, 2018 decision of
12 an Immigration Judge (“IJ”), which denied her application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Dawa Dolma Sherpa, No. A208 008 500 (B.I.A. Jan. 25, 2021), aff’g
15 No. A208 008 500 (Immig. Ct. N.Y. City Nov. 1, 2018). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 Under the circumstances, we have reviewed both the IJ’s and the BIA’s
18 opinions. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
19 We review the agency’s legal conclusions de novo and its factual findings for
20 substantial evidence. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The applicable standards of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the contrary.”); Hong
3 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing an adverse credibility
4 determination “under the substantial evidence standard”).
5 “Considering the totality of the circumstances, and all relevant factors, a
6 trier of fact may base a credibility determination on . . . the consistency between
7 the applicant’s or witness’s written and oral statements (whenever made and
8 whether or not under oath, and considering the circumstances under which the
9 statements were made), the internal consistency of each such statement, [and] the
10 consistency of such statements with other evidence of record . . . .” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
12 the totality of the circumstances, it is plain that no reasonable fact-finder could
13 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
14 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
15 supports the agency’s determination that Sherpa was not credible as to her claim
16 that Maoists attacked her on account of her political support for the Nepali
17 Congress Party.
18 The agency reasonably relied on the following record inconsistencies:
3 1 (1) Sherpa repeatedly testified that Maoists had not harmed her family members,
2 but changed that testimony when confronted with her husband’s letters stating
3 that he and her father had been attacked; and (2) she repeatedly testified that she
4 had never lived anywhere in Nepal other than her parents’ house, but changed her
5 testimony when confronted with her inconsistent application stating that she had
6 lived elsewhere. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137,
7 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from
8 showing that an IJ was compelled to find him credible. Multiple inconsistencies
9 would so preclude even more forcefully.”). The IJ was not compelled to credit
10 Sherpa’s explanation that she was nervous. See Majidi v. Gonzales, 430 F.3d 77, 80
11 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for
12 his inconsistent statements to secure relief; he must demonstrate that a reasonable
13 fact-finder would be compelled to credit his testimony.” (quotation marks
14 omitted)); cf. Ming Zhang v. Holder, 585 F.3d 715, 722 (2d Cir. 2009) (noting that an
15 applicant’s assertion that she was nervous or afraid did not overcome a record of
16 a sworn statement from a credible fear interview deemed sufficiently reliable for
17 purposes of a credibility determination).
18 Having questioned Sherpa’s credibility, the agency reasonably relied
4 1 further on her failure to rehabilitate her testimony with sufficient corroborating
2 evidence. “An applicant’s failure to corroborate his or her testimony may bear
3 on credibility, because the absence of corroboration in general makes an applicant
4 unable to rehabilitate testimony that has already been called into question.” Biao
5 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Aside from her husband’s
6 unsworn letters, which conflicted with her testimony, Sherpa submitted evidence
7 that she and her husband were members of the Nepali Congress Party and that
8 both received medical treatment, but she did not submit statements from her
9 father, who was also purportedly attacked, or a neighbor who purportedly
10 forwarded her a threat from the Maoists.
11 The adverse credibility determination is supported by substantial evidence
12 given Sherpa’s repeated and inconsistent statements regarding whom the Maoists
13 harmed and where she lived in Nepal, as well as her failure to provide sufficient
14 evidence to rehabilitate her testimony. See 8 U.S.C. § 1158
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21-6068 Sherpa v. Garland BIA Navarro, IJ A208 008 500
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 3rd day of May, two thousand twenty- 4 three. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RAYMOND J. LOHIER, JR., 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 DAWA DOLMA SHERPA, 14 Petitioner, 15 16 v. 21-6068 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Stuart Altman, Esq., New York, NY. 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney 2 General; Anthony C. Payne, Assistant 3 Director; Joseph D. Hardy, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Dawa Dolma Sherpa, a native and citizen of Nepal, seeks review
11 of a January 25, 2021 decision of the BIA affirming a November 1, 2018 decision of
12 an Immigration Judge (“IJ”), which denied her application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Dawa Dolma Sherpa, No. A208 008 500 (B.I.A. Jan. 25, 2021), aff’g
15 No. A208 008 500 (Immig. Ct. N.Y. City Nov. 1, 2018). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 Under the circumstances, we have reviewed both the IJ’s and the BIA’s
18 opinions. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
19 We review the agency’s legal conclusions de novo and its factual findings for
20 substantial evidence. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The applicable standards of review are well established. See 8 U.S.C. 2 1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the contrary.”); Hong
3 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing an adverse credibility
4 determination “under the substantial evidence standard”).
5 “Considering the totality of the circumstances, and all relevant factors, a
6 trier of fact may base a credibility determination on . . . the consistency between
7 the applicant’s or witness’s written and oral statements (whenever made and
8 whether or not under oath, and considering the circumstances under which the
9 statements were made), the internal consistency of each such statement, [and] the
10 consistency of such statements with other evidence of record . . . .” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
12 the totality of the circumstances, it is plain that no reasonable fact-finder could
13 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
14 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
15 supports the agency’s determination that Sherpa was not credible as to her claim
16 that Maoists attacked her on account of her political support for the Nepali
17 Congress Party.
18 The agency reasonably relied on the following record inconsistencies:
3 1 (1) Sherpa repeatedly testified that Maoists had not harmed her family members,
2 but changed that testimony when confronted with her husband’s letters stating
3 that he and her father had been attacked; and (2) she repeatedly testified that she
4 had never lived anywhere in Nepal other than her parents’ house, but changed her
5 testimony when confronted with her inconsistent application stating that she had
6 lived elsewhere. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137,
7 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from
8 showing that an IJ was compelled to find him credible. Multiple inconsistencies
9 would so preclude even more forcefully.”). The IJ was not compelled to credit
10 Sherpa’s explanation that she was nervous. See Majidi v. Gonzales, 430 F.3d 77, 80
11 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for
12 his inconsistent statements to secure relief; he must demonstrate that a reasonable
13 fact-finder would be compelled to credit his testimony.” (quotation marks
14 omitted)); cf. Ming Zhang v. Holder, 585 F.3d 715, 722 (2d Cir. 2009) (noting that an
15 applicant’s assertion that she was nervous or afraid did not overcome a record of
16 a sworn statement from a credible fear interview deemed sufficiently reliable for
17 purposes of a credibility determination).
18 Having questioned Sherpa’s credibility, the agency reasonably relied
4 1 further on her failure to rehabilitate her testimony with sufficient corroborating
2 evidence. “An applicant’s failure to corroborate his or her testimony may bear
3 on credibility, because the absence of corroboration in general makes an applicant
4 unable to rehabilitate testimony that has already been called into question.” Biao
5 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Aside from her husband’s
6 unsworn letters, which conflicted with her testimony, Sherpa submitted evidence
7 that she and her husband were members of the Nepali Congress Party and that
8 both received medical treatment, but she did not submit statements from her
9 father, who was also purportedly attacked, or a neighbor who purportedly
10 forwarded her a threat from the Maoists.
11 The adverse credibility determination is supported by substantial evidence
12 given Sherpa’s repeated and inconsistent statements regarding whom the Maoists
13 harmed and where she lived in Nepal, as well as her failure to provide sufficient
14 evidence to rehabilitate her testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
15 Lin, 534 F.3d at 165–66; see also Likai Gao, 968 F.3d at 145 n.8. Contrary to Sherpa’s
16 contention, the adverse credibility determination is dispositive of all relief,
17 including CAT relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“[W]e
18 have held that a petition for CAT relief may fail because of an adverse credibility
5 1 ruling rendered in the asylum context where the factual basis for the alien’s CAT
2 claim was the same as that rejected in his asylum petition.”).
3 Sherpa’s unexhausted argument that the IJ should have held a competency
4 hearing is not properly before us. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
5 104, 121–22 (2d Cir. 2007) (discussing requirement that petitioners exhaust issues
6 before the BIA); Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To preserve
7 an issue for judicial review, the petitioner must first raise it with specificity before
8 the BIA.”). In any event, we note that the IJ and attorneys confirmed that Sherpa
9 understood the interpreter and questions posed and that she was not suffering
10 from any health conditions or taking any medication. See Matter of M-A-M-, 25 I.
11 & N. Dec. 474, 479 (B.I.A. 2011) (discussing questions an IJ may pose to evaluate
12 competency).
13 For the foregoing reasons, the petition for review is DENIED. All pending
14 motions and applications are DENIED and stays VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court