Sherpa v. Garland

Opinion

22-6238 Sherpa v. Garland BIA Cortes, IJ A209 164 559 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of November, two thousand twenty-four.

PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________

DAWA GYALBU SHERPA, Petitioner,

v. 22-6238 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., Chhetry & Associates, P.C., New York, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; David J. Schor, Senior Litigation Counsel; Brett F. Kinney, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Dawa Gyalbu Sherpa, a native and citizen of Nepal, seeks review

of a decision of the BIA affirming a prior decision of an Immigration Judge (“IJ”)

denying his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”), and denying his motion for remand to the

IJ for consideration of new evidence. In re Dawa Gyalbu Sherpa, No. A 209 164 559

(B.I.A. Apr. 20, 2022), aff’g No. A 209 164 559 (Immigr. Ct. N.Y.C. Apr. 9, 2019).

We assume the parties’ familiarity with the underlying facts and procedural

history.

I. Asylum, Withholding of Removal, and CAT Relief

When the BIA agrees with the IJ’s adverse credibility determination but

supplements the IJ’s reasoning with additional references to the record, we review

the decisions of the IJ and the BIA together. See Yan Chen v. Gonzales, 417 F.3d 2 268, 271 (2d Cir. 2005). The agency’s “factual findings, including adverse

credibility determinations,” are reviewed “under the substantial evidence

standard.” Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation

marks omitted). Under that standard, we accept the agency’s factual findings as

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B).

When making an adverse credibility ruling, the trier of fact may consider

the totality of the circumstances, including but not limited to “the demeanor,

candor, or responsiveness of the applicant . . . , the consistency between the

applicant’s . . . written and oral statements (whenever made and whether or not

under oath, and considering the circumstances under which the statements were

made), . . . the consistency of such statements with other evidence of record . . . ,

and any inaccuracies or falsehoods in such statements, without regard to whether

an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s

claim, or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). Ultimately, we defer

to the “IJ’s credibility determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an adverse credibility

ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

3 Here, we find that substantial evidence supports the agency’s

determination that Sherpa was not credible. First, the IJ based its adverse

credibility finding on an inconsistency between Sherpa’s testimony at his credible

fear interview and his immigration hearing. During the former, Sherpa claimed

that he feared returning to Nepal because he had killed a man in a motorcycle

accident and that man’s son, Surya Man Thami, 1 sought retribution. But at his

immigration hearing, Sherpa testified for the first time that Thami, a member of

the Maoist Party, had threatened him for opposing the Maoist Party before the

accident and that Sherpa feared returning to Nepal because he believed the

Maoists would kill him for his opposition. Although Sherpa tries to explain away

this inconsistency with a variety of arguments, we are not convinced that any

adjudicator would be compelled to find that the statements were consistent. See

Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements to secure relief; he

must demonstrate that a reasonable fact-finder would be compelled to credit his

testimony.” (internal quotation marks omitted)).

1As the BIA pointed out, “[t]he record as a whole shows inconsistent spellings” of Surya Man Thami’s name. Certified Admin. Record at 4. 4 Second, the IJ pointed out that Sherpa provided inconsistent evidence about

the dates of certain events. For instance, Sherpa originally submitted a written

statement claiming he joined the Nepali Student Union in 2005, but then shortly

before his immigration hearing, he submitted an amended statement alleging that

he had actually joined in 2011. When asked to explain this six-year difference,

Sherpa claimed he had always said he had joined in 2011 and that he did not know

why the 2005 date was included in his original submission as his attorney

prepared the submission on his behalf. Again, we cannot say that a reasonable

factfinder would be compelled to credit this non-explanation. See id. 2

The IJ also noted a discrepancy between Sherpa’s affidavit, which stated that

the fatal motorcycle accident took place on January 30, 2012, and his testimony at

the immigration hearing, in which Sherpa said the crash took place one year earlier

on January 30, 2011. Now, in his opening brief, Sherpa asserts for the first time

that the interpreter mistranslated the date that he gave at the hearing. But Sherpa

2 Sherpa argues on appeal that the IJ did not acknowledge that Sherpa had amended his initial submission before the immigration hearing and therefore improperly relied upon the inconsistent dates when making an adverse credibility determination against him. But Sherpa misreads the record. The IJ explicitly mentioned that “shortly before his individual hearing the date was changed to 2011, the date that was referenced in Court during his testimony.” Certified Admin. Record at 103. 5 never made this argument at the hearing or to the BIA, and such factual arguments

may not be raised for the first time on appeal. See Brito v. Mukasey, 521 F.3d 160,

164 (2d Cir. 2008) (“[I]n order to preserve an issue for review by this Court, the

petitioner must not only raise it before the BIA[] but do so with specificity.”).

Third, the IJ relied on Sherpa’s demeanor, which the IJ described as “vague

and not responsive.” Certified Admin. Record at 84. We recognize that the IJ

“is in the best position to discern . . . whether a witness who hesitated in a response

was nevertheless attempting truthfully to recount what he recalled of key events

or struggling to remember the lines of a carefully crafted ‘script’; and whether

inconsistent responses are the product of innocent error or intentional falsehood.”

Majidi, 430 F.3d at 81 n.1. From our review of the transcript, we find there to be

sufficient evidence to support the IJ’s negative demeanor finding. Notably, when

asked on cross-examination about his political activities since arriving in the

United States, Sherpa testified that he was still a member of the Nepali Student

Union, only to later acknowledge that he had not renewed his membership in three

or four years. Sherpa also proclaimed that he was a member of the Nepali

Congress Party but then said he purchased a membership at two different

locations and almost a year later had yet to receive a membership card.

6 Acknowledging that the IJ is in the best position to make a demeanor finding, we

see no reason why a reasonable adjudicator would be compelled to find contrary

to the IJ in this regard.

Finally, the IJ relied on Sherpa’s failure to provide reliable corroboration as

further support for the IJ’s adverse credibility determination. “An applicant’s

failure to corroborate his or her testimony may bear on credibility, because the

absence of corroboration in general makes an applicant unable to rehabilitate

testimony that has already been called into question.” Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007). Although Sherpa provided some documentation to

corroborate his claims of political persecution, “[w]e generally defer to the [IJ’s]

evaluation of the weight to be afforded an applicant’s documentary evidence.”

Y.C., 741 F.3d at 332. We see no error in the agency attaching little weight to that

documentation, since the authors were all unavailable for cross-examination and

many of them were family members who did not personally witness the events

described in their letters. See Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020)

(deferring to IJ’s decision to accord “little weight” to letters from declarants who

were “interested parties” and not available for cross-examination). Moreover,

7 Sherpa does not challenge the agency’s evaluation of his medical record, which –

as the IJ noted – did not describe his injuries.

Given the inconsistencies related to the events underlying Sherpa’s claim of

past persecution, the IJ’s demeanor finding, and the lack of reliable corroboration,

we find that substantial evidence supports the IJ’s determination that Sherpa was

not credible. See id. at 145 n.8 (“[E]ven a single inconsistency might preclude an

alien from showing that an IJ was compelled to find him credible. Multiple

inconsistencies would so preclude even more forcefully.”); Xian Tuan Ye v. Dep’t

of Homeland Sec., 446 F.3d 289, 294 (2d Cir. 2006) (“Where the IJ’s adverse credibility

finding is based on specific examples in the record of inconsistent

statements . . . about matters material to [a] claim of persecution . . . , a reviewing

court will generally not be able to conclude that a reasonable adjudicator was

compelled to find otherwise.” (internal quotation marks omitted)). And since the

adverse credibility finding was dispositive as to the asylum claim, which has the

same factual predicate as the withholding of removal and CAT claims, it is also

dispositive as to those claims. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.

2018).

8 II. Remand

We review the denial of a motion to remand for the consideration of new

evidence under the same standards as the denial of a motion to reopen. See Li

Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 156–57 (2d Cir. 2005). We review a

denial of such motions for abuse of discretion, which may be found when the BIA’s

decision “rests on an error of law, inexplicably departs from established policies,

or is so devoid of any reasoning as to raise the concern that it acted in an arbitrary

or capricious manner.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).

“[T]o prevail on a motion to reopen alleging changed country conditions

where the persecution claim was previously denied based on an adverse

credibility finding . . . , the [movant] must either overcome the prior determination

or show that the new claim is independent of the evidence that was found to be

not credible.” Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020). Where the

motion is supported by additional allegations that have substantially similar

factual bases and essentially constitute “a continuation of the [movant’s]

previously discredited claims,” the movant must overcome the prior adverse

credibility determination. Id. at 4–5.

9 Sherpa argues that the agency failed to explain why the new documentation

that he submitted with his motion for remand did not satisfy the applicable

standard, particularly as it relates to new evidence showing that Maoists brutally

beat his wife and child in May 2021. See Pet’r Br. at 31. According to Sherpa, the

agency “merely state[d] a conclusory opinion” that he failed to “show [that] the

claim in his motion was independent of the evidence that was found to be not

credible and that the new evidence, generally, d[id] not demonstrate a material

change in country conditions to remit a remand.” Id. We disagree.

First, as the BIA specifically pointed out, Sherpa’s new evidence did not

address the grounds underlying the agency’s adverse credibility finding. None

of the information that Sherpa provided even mentions Thami, nor does it resolve

the issues with the corroborating documents he previously submitted. He also

fails to challenge the agency’s adverse credibility finding in his motion for remand.

Second, the BIA specifically held that Sherpa failed to show that his claimed

fear of political persecution described in his remand motion was independent of

the evidence that the agency previously found to be not credible. While Sherpa

did provide evidence supporting his new allegation that his wife and son were

attacked by Maoists looking for him, the incident appears to be a continuation of

10 his prior claim of political persecution that the agency already found to be not

credible. The BIA did not abuse its discretion by denying Sherpa’s motion for

remand when he provided no evidence either rebutting the agency’s adverse

credibility finding or separating the claim in his motion from that already found

to be incredible. See Kaur v. B.I.A., 413 F.3d 232, 234 (2d Cir. 2005) (explaining that

the BIA does not abuse its discretion by denying a motion to reopen where the

petitioner fails to submit material evidence rebutting the adverse credibility

finding underlying the denial of an asylum application).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court