Sherpa v. Barr

18-595 Sherpa v. Barr BIA Tsankov, IJ A202 078 593 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 18th day of December, two thousand nineteen. [5] 6 PRESENT: 7 DENNIS JACOBS, 8 JOSÉ A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ [12] 13 SANGE SHERPA, AKA SHERPA SANGE, 14 Petitioner, [15] 16 v. 18-595 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Jason Schaffer, Mungoven & 24 Assoc., P.C., New York, NY. [25] 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Tracey N. McDonald, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 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 Sange Sherpa, a native and citizen of Nepal, 6 seeks review of a January 30, 2018, decision of the BIA 7 affirming a February 28, 2017, decision of an Immigration 8 Judge (“IJ”) denying his application for asylum, withholding 9 of removal, and relief under the Convention Against Torture 10 (“CAT”). In re Sange Sherpa, No. A202 078 593 (B.I.A. Jan. 11 30, 2018), aff’g No. A202 078 593 (Immig. Ct. N.Y. City Feb. 12 28, 2017). We assume the parties’ familiarity with the 13 underlying facts and procedural history. 14 Under the circumstances, we have considered both the IJ’s 15 and the BIA’s opinions “for the sake of completeness.” 16 Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524 , 528 17 (2d Cir. 2006). The applicable standards of review are well 18 established. See 8 U.S.C. § 1252 (b)(4)(B); Hong Fei Gao v. 19 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 20 “Considering the totality of the circumstances, and all 21 relevant factors, a trier of fact may base a credibility 22 determination on . . . the consistency between the [2] 1 applicant’s or witness’s written and oral statements . . . , 2 the internal consistency of each such statement, the 3 consistency of such statements with other evidence of 4 record . . . without regard to whether an inconsistency, 5 inaccuracy, or falsehood goes to the heart of the applicant’s 6 claim, or any other relevant factor.” 8 U.S.C. 7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162 , 8 163-64 (2d Cir. 2008). Substantial evidence supports the 9 agency’s determination that Sherpa was not credible as to his 10 claim that Maoists attacked him in Nepal on account of his 11 membership in the Nepal Student Union. 12 The agency reasonably relied on Sherpa’s inconsistent 13 evidence regarding whether he was attacked in October or 14 November 2013; when he was attacked in relation to his 15 departure from Nepal; whether he was injured during the first 16 or second of two incidents; and when and how he obtained his 17 corroborating evidence. See 8 U.S.C. § 1158 (b)(1)(B)(iii). 18 Sherpa did not provide compelling explanations for these 19 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 20 Cir. 2005) (“A petitioner must do more than offer a plausible 21 explanation for his inconsistent statements to secure relief; 22 he must demonstrate that a reasonable fact-finder would be [3] 1 compelled to credit his testimony.” (internal quotation marks 2 omitted)). 3 Given the inconsistency findings, the agency’s adverse 4 credibility determination is supported by substantial 5 evidence. See 8 U.S.C. § 1158 (b)(1)(B)(iii). That 6 determination was dispositive of asylum, withholding of 7 removal, and CAT relief because all three claims were based 8 on the same factual predicate. See Paul v. Gonzales, 444 [9] F.3d 148, 156-57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. All pending motions and applications are DENIED and 12 stays VACATED. 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court