09-2887-ag

Sherpa v. Holder BIA Balasquide,IJ A099 928 380 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYORDER 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 21 day of January, two thousand eleven. st 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROBERT D. SACK, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges . 12

_______________________________________ 13 14 GELJEN SHERPA, 15 Petitioner , 16 17 v. 09-2887-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL 21 Respondent . 22

______________________________________ 23 24 FOR PETITIONER: Ramesh K. Shrestha, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney General; 27 Blair T. O’Connor, Assistant Director; 28 Elizabeth D. Kurlan, Trial Attorney, 29 Office of Immigration Litigation, Civil 30 Division, United States Department of 31 Justice, Washington, D.C.2 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 Geljen Sherpa, a native and citizen of 6 Nepal, seeks review of a June 19, 2009, order of the BIA 7 affirming the September 20, 2007, decision of Immigration 8 Judge (“IJ”) Javier Balasquide denying Sherpa’s application 9 for asylum, withholding of removal, and relief under the 1 0 Convention Against Torture (“CAT”). In re Geljen Sherpa , 1 1 No. A099 928 380 (B.I.A. June 19, 2009), aff’gNo. A099 928 1 2 380 (Immig. Ct. N.Y. City Sept. 20, 2007). We assume the 1 3 parties’ familiarity with the underlying facts and 1 4 procedural history in this case. 1 5 Under the circumstances of this case, we review only 1 6 the IJ’s decision. See Shunfu Li v. Mukasey, 529 F.3d 141, 1 7 146 (2d Cir. 2008). The applicable standards of review are 1 8 well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui 1 9 Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); 2 0 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 21 I. Adverse Credibility Finding 2 2 Substantial evidence supports the IJ’s determination3 1 that Sherpa was not credible as to his account of events 2 after he relocated to Kathmandu in 2001. For asylum 3 applications governed by the amendments made to the 4 Immigration and Nationality Act by the REAL ID Act of 2005, 5 the IJ may, considering the totality of the circumstances, 6 base a credibility finding on an asylum applicant’s 7 demeanor, the plausibility of his or her account, and 8 inconsistencies in his or her statements, “without regard to 9 whether” they go “to the heart of the applicant’s claim.” 8 1 0 U.S.C. § 1158(b)(1)(B)(iii). 1 1 Here, the record supports the IJ’s partial adverse 1 2 credibility based on inconsistencies between Sherpa’s asylum 1 3 application and his testimony. Specifically, the IJ 1 4 reasonably found that: (1) Sherpa omitted significant events 1 5 from his asylum application that he relied on in his 1 6 testimony; and (2) Sherpa testified that he received a 1 7 threatening letter in a different month than in his asylum 1 8 application. Sherpa’s explanations for these 1 9 inconsistencies, that he omitted information from his 2 0 original asylum application because he prepared it himself 2 1 and gave inconsistent dates because he made an error in 2 2 converting months from the Nepali calendar, do not compel a4 1 different conclusion. See Majidi v. Gonzales , 430 F.3d 77, 2 80-81 (2d Cir. 2005). Sherpa’s asylum application provided 3 a very detailed statement of facts, such that the IJ was 4 warranted to find that his failure to mention a kidnapping 5 attempt and a threatening letter is not explained by his 6 contention that he made a mistake. And the IJ could 7 reasonably conclude that Sherpa’s account of an error in 8 converting the Nepali calendar into western dates is belied 9 by the fact that the Nepali date he gave to this Court to 1 0 explain the error is also inconsistent with the Nepali date 1 1 provided in his asylum application. 12 II. Asylum, Withholding of Removal, and CAT Relief 1 3 In this case, the IJ erred in concluding that the 1 4 incidents of harm that Sherpa suffered considered 1 5 cumulatively did not rise to the level of persecution. 1 6 Physical violence against an individual may constitute 1 7 persecution because “violent conduct generally goes beyond 1 8 the mere annoyance and distress that characterize 1 9 harassment.” Ivanishvili v. U.S. Dep't of Justice , 433 F.3d 2 0 332, 342 (2d Cir. 2006). The IJ must consider “the context 2 1 in which [] mistreatment occurs” when determining whether an 2 2 applicant has suffered persecution. Beskovic v. Gonzales ,5 1 467 F.3d 223, 226 (2d Cir. 2006). Sherpa testified to 2 suffering a minor beating at the hands of Maoist rebels. 3 This beating took place in a context of repeated death 4 threats, an attack on his home, and an attack on his family 5 members, which caused him to flee his home for Kathmandu. 6 See id. ; Tao Jiang v. Gonzales , 500 F.3d 137, 141 (2d Cir. 7 2007) (“[I]f an applicant’s family member was harmed as a 8 means of targeting the applicant on some protected ground, 9 that harm may constitute persecution of the applicant” 1 0 (emphasis in original)). Based on these facts, we conclude 1 1 that, as a matter of law, the harm Sherpa suffered rose to 1 2 the level of persecution. See Beskovic , 467 F.3d at 226; 1 3 Ivanishvili , 433 F.3d at 341. 1 4 However, it would be futile to remand to the agency 1 5 because, in considering whether Sherpa established a well1 6 founded fear of persecution, the IJ reasonably determined 1 7 that Sherpa had safely relocated to another city in Nepal. 1 8 See Xiao Ji Chen v. U.S. Dept. Of Justice , 471 F.3d 315, 338 1 9 (2d Cir. 2006); see also8 C.F.R. § 1208.13(b)(2)(ii), 2 0 (b)(3). When an applicant has established past persecution, 2 1 the regulations provide that there is a rebuttable 2 2 presumption that he has a well-founded fear of future6 1 persecution. 8 C.F.R. § 1208.13(b)(1). Nevertheless, an IJ 2 must deny an application for asylum if the government rebuts 3 the presumption of a well-founded fear of persecution with a 4 demonstration by a preponderance of the evidence that “[t]he 5 applicant could avoid future persecution by relocating to 6 another part of [his] country of nationality . . . and under 7 all the circumstances, it would be reasonable to expect 8 [him] to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B). In 9 determining whether the presumption of a well-founded fear 1 0 has been rebutted by the applicant’s ability to relocate, 1 1 the agency’s regulations provide that the IJ should evaluate 1 2 the reasonableness of internal relocation by considering, 1 3 inter alia , “whether the applicant would face other serious 1 4 harm in the place of suggested relocation; any ongoing civil 1 5 strife within the country; administrative, economic, or 1 6 judicial infrastructure; geographical limitations; and 1 7 social and cultural constraints, such as age, gender, 1 8 health, and social and familial ties.” 8 C.F.R. § 1208.13 1 9 (b)(3). In this case, remand would be futile because the 2 0 Court can “state with confidence” that the IJ would find any 2 1 presumption of a well-founded fear of persecution rebutted 2 2 when, in analyzing whether Sherpa had established a7 1 well-founded fear of persecution, the IJ considered the 2 reasonableness factors listed in the regulations and 3 reasonably found that Sherpa had safely relocated to 4 Kathmandu in 2001 and had lived there with his family 5 unharmed until 2006. See Xiao Ji Chen , 471 F.3d at 338; see 6 also8 C.F.R. § 1208.13(b)(3). 7 Substantial evidence supports the agency’s conclusion 8 that Sherpa failed to establish a well-founded fear of 9 future persecution. In denying Sherpa’s application for 1 0 asylum, the IJ found that while Sherpa had received threats 1 1 from Maoist rebels at least six years before his hearing, 1 2 those threats did not show that he had a well-founded fear 1 3 of future persecution, considering that he had safely 1 4 relocated to Kathmandu, where he lived for nearly five years 1 5 and where his wife and children continued to live unharmed. 1 6 See Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 1 7 1999); 8 C.F.R. § 1208.13(b)(3). Additionally, the IJ 1 8 reasonably relied on country reports in the record to find 1 9 that the cease-fire in Nepal suggested that Sherpa was in 2 0 less danger of persecution at the hands of the Maoists than 2 1 he was before the cease-fire. See Lecaj v. Holder , 616 F.3d 2 2 111, 115-16 (2d Cir. 2010). Accordingly, because the IJ8 1 reasonably evaluated the factors provided in the regulations 2 – safety of relocation, civil strife, and family ties – in 3 determining that Sherpa could safely relocate within Nepal, 4 and, indeed, had relocated, the IJ did not err in concluding 5 that he did not have a well-founded fear of future 6 persecution. See 8 C.F.R. § 1208.13(b)(2)(ii) & (b)(3). 7 Finally, because Sherpa’s claims for withholding of 8 removal and CAT relief were based on the same factual 9 predicate as his claim for asylum, the agency did not err in 1 0 denying those forms of relief. See Paul v. Gonzales , 444 1 1 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is 12 1 3 DENIED. As we have completed our review, any stay of 1 4 removal that the Court previously granted in this petition 1 5 is VACATED, and any pending motion for a stay of removal in 1 6 this petition is DISMISSED as moot. Any pending request for 1 7 oral argument in this petition is DENIED in accordance with 1 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 9 Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 2 2