14-1272

Sherpa v. Lynch

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 9th 4 day of September, two thousand fifteen.

5

6 PRESENT: RALPH K. WINTER,

7 JOHN M. WALKER, Jr.,

8 DENNIS JACOBS,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 LHAKPA NURU SHERPA, 

13 Petitioner,

14

15 -v.- 14-1272

16

17 LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,* 18

19 Respondent.

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21

22 FOR PETITIONER: H. RAYMOND FASANO,(with Ramesh

23 K. Shrestha on the brief), 

* Pursuant to Federal Rule of Appellate Procedure

43(c)(2), Attorney General Loretta E. Lynch is automatically

substituted for former Attorney General Eric H. Holder, Jr.

1
1 YOUMAN, MADEO & FASANO, LLP, 

2 New York, New York.

3

4 FOR RESPONDENT: COLETTE J. WINSTON (with Anthony

5 C. Payne on the brief), for

6 Joyce R. Branda, Assistant

7 Attorney General, Civil

8 Division, Washington, District

9 of Columbia.

10

11 UPON DUE CONSIDERATION of this petition for review of a

12 Board of Immigration Appeals (“BIA”) decision, it is hereby

13 ORDERED, ADJUDGED, and DECREED that the petition for review

14 is DENIED. 

15

16 Petitioner Lhakpa Nuru Sherpa, a native and citizen of

17 Nepal, seeks review of a April 3, 2014 decision of the BIA

18 affirming an October 20, 2011 decision of an Immigration

19 Judge (“IJ”) denying Sherpa’s application for asylum,

20 withholding of removal, and relief under the Convention

21 Against Torture (“CAT”). We assume the parties’ familiarity

22 with the underlying facts, the procedural history, and the

23 issues presented for review.

24

25 When, as here, “the BIA adopts the decision of the IJ

26 and merely supplements the IJ’s decision” this Court

27 “review[s] the decision of the IJ as supplemented by the

28 BIA.” Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

29 The applicable standards of review are well established. 

30 See 8 U.S.C. § 1252(b)(4)(B); see also Lin v. Mukasey, 534

31 F.3d 162, 165-66 (2d Cir. 2008). 

32

33 For asylum applications governed by the REAL ID Act,

34 such as Sherpa’s, the IJ may, considering the totality of

35 the circumstances, base a credibility finding on an

36 applicant’s demeanor as well as omissions and

37 inconsistencies in the applicant’s testimony without regard

38 to whether they go “to the heart of the applicant’s claim.” 

39 8 U.S.C. § 1158(b)(1)(B)(iii); Lin, 534 F.3d at 165. We

40 “defer . . . to an IJ’s credibility determination unless,

41 from the totality of the circumstances, it is plain that no

42 reasonable fact-finder could make such an adverse

43 credibility ruling.” Lin, 534 F.3d at 167. And where “the

44 IJ’s adverse credibility finding is based on specific

45 examples in the record of inconsistent statements by the

46 asylum applicant about matters material to his claim of

47 persecution, or on contradictory evidence or inherently

2
1 improbable testimony regarding such matters, a reviewing

2 court will generally not be able to conclude that a

3 reasonable adjudicator was compelled to find otherwise.” 

4 Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir. 2005)

5 (internal quotation marks and citations omitted). 

6 Accordingly, the “exceedingly narrow scope of our review . .

7 . is designed to ensure merely that credibility findings are

8 based upon neither a misstatement of the facts in the record

9 nor bald speculation or caprice.” Id. at 80 (internal

10 quotation marks and citations omitted). Here, the totality

11 of the circumstances, including Sherpa’s demeanor, his

12 internally inconsistent testimony, and inconsistencies

13 between his testimony and record evidence, taken together,

14 sufficiently support the IJ’s credibility determination. 

15

16 The IJ’s finding that Sherpa’s demeanor was somewhat

17 hesitant, nonresponsive, evasive and rehearsed formed the

18 basis for the IJ’s conclusion that Sherpa did not testify in

19 a forthright manner. One example cited by the IJ is on

20 direct examination, when Sherpa was asked when he joined the

21 Nepali Congress Party, Sherpa paused for a long period of

22 time and had difficulty answering the question. When

23 queried as to the hesitancy in his testimony, Sherpa gave

24 two conflicting explanations, first asserting that there

25 were no pauses, and then explaining that the hesitations in

26 his testimony were simply his way of talking. Contrary to

27 Sherpa’s assertion on appeal, the IJ properly assessed

28 Sherpa’s demeanor and supported that finding with a specific

29 record example. See Lin v. Gonzales, 446 F.3d 395, 400 (2d

30 Cir. 2006) (“Evasiveness is, of course, one of the many

31 outward signs a fact-finder may consider in evaluating

32 demeanor and in making an assessment of credibility. 

33 Demeanor is virtually always evaluated subjectively and

34 intuitively, and an IJ therefore is accorded great deference

35 on this score . . . .”). 

36

37 The IJ also supported its adverse credibility

38 determination by citing three inconsistencies in Sherpa’s

39 testimony. On direct examination, Sherpa testified that he

40 returned from a mountaineering expedition on April 24, 2005

41 and that he was attacked by the Maoists on June 22, 2005. 

42 Subsequently, on cross-examination, Sherpa conceded that

43 during the period between April 24 and June 22, he was not

44 molested by the Maoists. At the conclusion of his

45 testimony, Sherpa was given the opportunity to rectify any

46 mistakes in his testimony and at this point, Sherpa

47 indicated that his return date from his expedition was

3
1 actually May 30, 2005. The IJ questioned Sherpa as to why

2 he initially volunteered the date of April 24, 2005 and

3 Sherpa simply stated that he made a mistake. Because of the

4 line of questioning on cross-examination pertaining to the

5 length of time Sherpa was free from danger perpetrated by

6 the Maoists, the IJ found Sherpa’s inconsistent testimony on

7 this issue to be a “significant discrepancy.” Certified

8 Administrative Record (“CAR”) at 96.

9

10 Similarly, the IJ observed that Sherpa maintained on

11 direct and cross-examination that his wife received a letter

12 from the Maoists’ sister organization, the Young Communist

13 League, in November 2009. Once Sherpa was shown a copy of

14 the letter, dated April 30, 2009, he again simply stated

15 that he made a mistake and that he was confused, despite

16 freely volunteering the November 2009 date on both direct

17 and cross-examination. Sherpa further testified on direct

18 examination that he joined the Nepali Youth Congress Party

19 on August 26, 2005 but changed this answer on cross20 examination to indicate that his association with the Nepali

21 Youth Congress Party actually began in 2000. As with his

22 previous answers, Sherpa offered nothing by way of

23 explanation for his discrepancy other than acknowledging

24 that he made a mistake. Thus, on this record, “the totality

25 of the circumstances supports the agency’s adverse

26 credibility determination.” Yan v. Holder, 578 F. App’x 4,

27 6 (2d Cir. 2014).

28

29 Sherpa contends that none of the IJ’s findings

30 pertaining to inconsistencies in dates should be credited

31 because of the significant differences between the Nepali

32 and Gregorian calendars. This argument was not made to the

33 IJ, and the record does not compel the conclusion that the

34 discrepancies in Sherpa’s answers were a result of

35 incongruity between the two calendars. “Our role does not

36 extend to hypothesiz[ing] excuses for the inconsistencies in

37 an asylum applicant’s testimony.” Majidi, 430 F.3d at 80

38 (internal quotation marks and citations omitted). Sherpa

39 has accordingly fallen short of prevailing on his petition.

40 See id. (“A petitioner must do more than offer a plausible

41 explanation for his inconsistent statements to secure

42 relief; he must demonstrate that a reasonable fact-finder

43 would be compelled to credit his testimony.”) (internal

44 quotation marks and citations omitted). The IJ’s adverse

45 credibility finding was therefore sufficient to deny Sherpa

46 asylum and withholding of removal. See Hoxhallari v.

47 Gonzales, 468 F.3d 179, 184 (2d Cir. 2006). And Sherpa’s

4
1 CAT claim must be rejected because he has not shown that it

2 is more likely than not that he would be tortured by or with

3 the acquiescence of a government official acting in an

4 official capacity.

5

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

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

10 this petition is DISMISSED as moot. 

11

12 FOR THE COURT:

13 CATHERINE O’HAGAN WOLFE, CLERK 

14

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