09-2887-ag

Sherpa v. Holder

BIA

Balasquide, IJ

A099 928 380

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 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

10 Convention Against Torture (“CAT”). In re Geljen Sherpa,

11 No. A099 928 380 (B.I.A. June 19, 2009), aff’g No. A099 928

12 380 (Immig. Ct. N.Y. City Sept. 20, 2007). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we review only

16 the IJ’s decision. See Shunfu Li v. Mukasey, 529 F.3d 141,

17 146 (2d Cir. 2008). The applicable standards of review are

18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui

19 Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);

20 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

21 I. Adverse Credibility Finding

22 Substantial evidence supports the IJ’s determination
3

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

10 U.S.C. § 1158(b)(1)(B)(iii). 

11 Here, the record supports the IJ’s partial adverse

12 credibility based on inconsistencies between Sherpa’s asylum

13 application and his testimony. Specifically, the IJ

14 reasonably found that: (1) Sherpa omitted significant events

15 from his asylum application that he relied on in his

16 testimony; and (2) Sherpa testified that he received a

17 threatening letter in a different month than in his asylum

18 application. Sherpa’s explanations for these

19 inconsistencies, that he omitted information from his

20 original asylum application because he prepared it himself

21 and gave inconsistent dates because he made an error in

22 converting months from the Nepali calendar, do not compel a
4

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

10 explain the error is also inconsistent with the Nepali date

11 provided in his asylum application.

12 II. Asylum, Withholding of Removal, and CAT Relief

13 In this case, the IJ erred in concluding that the

14 incidents of harm that Sherpa suffered considered

15 cumulatively did not rise to the level of persecution. 

16 Physical violence against an individual may constitute

17 persecution because “violent conduct generally goes beyond

18 the mere annoyance and distress that characterize

19 harassment.” Ivanishvili v. U.S. Dep't of Justice, 433 F.3d

20 332, 342 (2d Cir. 2006). The IJ must consider “the context

21 in which [] mistreatment occurs” when determining whether an

22 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”

10 (emphasis in original)). Based on these facts, we conclude

11 that, as a matter of law, the harm Sherpa suffered rose to

12 the level of persecution. See Beskovic, 467 F.3d at 226;

13 Ivanishvili, 433 F.3d at 341.

14 However, it would be futile to remand to the agency

15 because, in considering whether Sherpa established a well16 founded fear of persecution, the IJ reasonably determined

17 that Sherpa had safely relocated to another city in Nepal. 

18 See Xiao Ji Chen v. U.S. Dept. Of Justice, 471 F.3d 315, 338

19 (2d Cir. 2006); see also 8 C.F.R. § 1208.13(b)(2)(ii),

20 (b)(3). When an applicant has established past persecution,

21 the regulations provide that there is a rebuttable

22 presumption that he has a well-founded fear of future
6

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

10 has been rebutted by the applicant’s ability to relocate,

11 the agency’s regulations provide that the IJ should evaluate

12 the reasonableness of internal relocation by considering,

13 inter alia, “whether the applicant would face other serious

14 harm in the place of suggested relocation; any ongoing civil

15 strife within the country; administrative, economic, or

16 judicial infrastructure; geographical limitations; and

17 social and cultural constraints, such as age, gender,

18 health, and social and familial ties.” 8 C.F.R. § 1208.13

19 (b)(3). In this case, remand would be futile because the

20 Court can “state with confidence” that the IJ would find any

21 presumption of a well-founded fear of persecution rebutted

22 when, in analyzing whether Sherpa had established a
7

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 also 8 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

10 asylum, the IJ found that while Sherpa had received threats

11 from Maoist rebels at least six years before his hearing,

12 those threats did not show that he had a well-founded fear

13 of future persecution, considering that he had safely

14 relocated to Kathmandu, where he lived for nearly five years

15 and where his wife and children continued to live unharmed. 

16 See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

17 1999); 8 C.F.R. § 1208.13(b)(3). Additionally, the IJ

18 reasonably relied on country reports in the record to find

19 that the cease-fire in Nepal suggested that Sherpa was in

20 less danger of persecution at the hands of the Maoists than

21 he was before the cease-fire. See Lecaj v. Holder, 616 F.3d

22 111, 115-16 (2d Cir. 2010). Accordingly, because the IJ
8

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

10 denying those forms of relief. See Paul v. Gonzales, 444

11 F.3d 148, 156 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DENIED. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22