14-1272 Sherpa v. Lynch



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



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**
**FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY**
**ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX**
**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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of September, two thousand fifteen.** 4 5 **PRESENT: RALPH K. WINTER,** 6 **JOHN M. WALKER, Jr.,** 7 **DENNIS JACOBS,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **LHAKPA NURU SHERPA,** 12 **Petitioner ,**  13 14 **-v.- 14-1272** 15 16 **LORETTA E. LYNCH, UNITED STATES** 17 **ATTORNEY GENERAL,** * 18 **Respondent**

**.** 19
- - - - - - - - - - - - - - - - - - - -X 20 21 **FOR PETITIONER:** H. RAYMOND FASANO,(with Ramesh 22 K. Shrestha on the brief ), 23

*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.

1YOUMAN, MADEO & FASANO, LLP, 1 New York, New York. 2 3 **FOR RESPONDENT:** COLETTE J. WINSTON (with Anthony 4 C. Payne on the brief ), for 5 Joyce R. Branda, Assistant 6 Attorney General, Civil 7 Division, Washington, District 8 of Columbia. 9 10 **UPON DUE CONSIDERATION**of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 **ORDERED** , **ADJUDGED** , and **DECREED**that the petition for review 13 is **DENIED**

. 14 15 Petitioner Lhakpa Nuru Sherpa, a native and citizen of 16 Nepal, seeks review of a April 3, 2014 decision of the BIA 17 affirming an October 20, 2011 decision of an Immigration 18 Judge (“IJ”) denying Sherpa’s application for asylum, 19 withholding of removal, and relief under the Convention 20 Against Torture (“CAT”). We assume the parties’ familiarity 21 with the underlying facts, the procedural history, and the 22 issues presented for review. 23 24 When, as here, “the BIA adopts the decision of the IJ 25 and merely supplements the IJ’s decision” this Court 26 “review[s] the decision of the IJ as supplemented by the 27 BIA.” Chen v. Gonzales
, 417 F.3d 268, 271 (2d Cir. 2005). 28 The applicable standards of review are well established. 29 See8 U.S.C. § 1252(b)(4)(B); see alsoLin v. Mukasey , 534 30 F.3d 162, 165-66 (2d Cir. 2008). 31 32 For asylum applications governed by the REAL ID Act, 33 such as Sherpa’s, the IJ may, considering the totality of 34 the circumstances, base a credibility finding on an 35 applicant’s demeanor as well as omissions and 36 inconsistencies in the applicant’s testimony without regard 37 to whether they go “to the heart of the applicant’s claim.” 38 8 U.S.C. § 1158(b)(1)(B)(iii); Lin , 534 F.3d at 165. We 39 “defer . . . to an IJ’s credibility determination unless, 40 from the totality of the circumstances, it is plain that no 41 reasonable fact-finder could make such an adverse 42 credibility ruling.” Lin , 534 F.3d at 167. And where “the 43 IJ’s adverse credibility finding is based on specific 44 examples in the record of inconsistent statements by the 45 asylum applicant about matters material to his claim of 46 persecution, or on contradictory evidence or inherently 47

2improbable testimony regarding such matters, a reviewing 1 court will generally not be able to conclude that a 2 reasonable adjudicator was compelled to find otherwise.” 3 Majidi v. Gonzales , 430 F.3d 77, 79-80 (2d Cir. 2005) 4 (internal quotation marks and citations omitted). 5 Accordingly, the “exceedingly narrow scope of our review . . 6 . is designed to ensure merely that credibility findings are 7 based upon neither a misstatement of the facts in the record 8 nor bald speculation or caprice.” Id. at 80 (internal 9 quotation marks and citations omitted). Here, the totality 10 of the circumstances, including Sherpa’s demeanor, his 11 internally inconsistent testimony, and inconsistencies 12 between his testimony and record evidence, taken together, 13 sufficiently support the IJ’s credibility determination. 14 15 The IJ’s finding that Sherpa’s demeanor was somewhat 16 hesitant, nonresponsive, evasive and rehearsed formed the 17 basis for the IJ’s conclusion that Sherpa did not testify in 18 a forthright manner. One example cited by the IJ is on 19 direct examination, when Sherpa was asked when he joined the 20 Nepali Congress Party, Sherpa paused for a long period of 21 time and had difficulty answering the question. When 22 queried as to the hesitancy in his testimony, Sherpa gave 23 two conflicting explanations, first asserting that there 24 were no pauses, and then explaining that the hesitations in 25 his testimony were simply his way of talking. Contrary to 26 Sherpa’s assertion on appeal, the IJ properly assessed 27 Sherpa’s demeanor and supported that finding with a specific 28 record example. See Lin v. Gonzales , 446 F.3d 395, 400 (2d 29 Cir. 2006) (“Evasiveness is, of course, one of the many 30 outward signs a fact-finder may consider in evaluating 31 demeanor and in making an assessment of credibility. 32 Demeanor is virtually always evaluated subjectively and 33 intuitively, and an IJ therefore is accorded great deference 34 on this score . . . .”). 35 36 The IJ also supported its adverse credibility 37 determination by citing three inconsistencies in Sherpa’s 38 testimony. On direct examination, Sherpa testified that he 39 returned from a mountaineering expedition on April 24, 2005 40 and that he was attacked by the Maoists on June 22, 2005. 41 Subsequently, on cross-examination, Sherpa conceded that 42 during the period between April 24 and June 22, he was not 43 molested by the Maoists. At the conclusion of his 44 testimony, Sherpa was given the opportunity to rectify any 45 mistakes in his testimony and at this point, Sherpa 46 indicated that his return date from his expedition was 47

3actually May 30, 2005. The IJ questioned Sherpa as to why 1 he initially volunteered the date of April 24, 2005 and 2 Sherpa simply stated that he made a mistake. Because of the 3 line of questioning on cross-examination pertaining to the 4 length of time Sherpa was free from danger perpetrated by 5 the Maoists, the IJ found Sherpa’s inconsistent testimony on 6 this issue to be a “significant discrepancy.” Certified 7 Administrative Record (“CAR”) at 96. 8 9 Similarly, the IJ observed that Sherpa maintained on 10 direct and cross-examination that his wife received a letter 11 from the Maoists’ sister organization, the Young Communist 12 League, in November 2009. Once Sherpa was shown a copy of 13 the letter, dated April 30, 2009, he again simply stated 14 that he made a mistake and that he was confused, despite 15 freely volunteering the November 2009 date on both direct 16 and cross-examination. Sherpa further testified on direct 17 examination that he joined the Nepali Youth Congress Party 18 on August 26, 2005 but changed this answer on cross19 examination to indicate that his association with the Nepali 20 Youth Congress Party actually began in 2000. As with his 21 previous answers, Sherpa offered nothing by way of 22 explanation for his discrepancy other than acknowledging 23 that he made a mistake. Thus, on this record, “the totality 24 of the circumstances supports the agency’s adverse 25 credibility determination.” Yan v. Holder , 578 F. App’x 4, 26 6 (2d Cir. 2014). 27 28 Sherpa contends that none of the IJ’s findings 29 pertaining to inconsistencies in dates should be credited 30 because of the significant differences between the Nepali 31 and Gregorian calendars. This argument was not made to the 32 IJ, and the record does not compel the conclusion that the 33 discrepancies in Sherpa’s answers were a result of 34 incongruity between the two calendars. “Our role does not 35 extend to hypothesiz[ing] excuses for the inconsistencies in 36 an asylum applicant’s testimony.” Majidi , 430 F.3d at 80 37 (internal quotation marks and citations omitted). Sherpa 38 has accordingly fallen short of prevailing on his petition. 39 See id

. (“A petitioner must do more than offer a plausible 40 explanation for his inconsistent statements to secure 41 relief; he must demonstrate that a reasonable fact-finder 42 would be compelledto credit his testimony.”) (internal 43 quotation marks and citations omitted). The IJ’s adverse 44 credibility finding was therefore sufficient to deny Sherpa 45 asylum and withholding of removal. See Hoxhallari v. 46 Gonzales , 468 F.3d 179, 184 (2d Cir. 2006). And Sherpa’s 47

4CAT claim must be rejected because he has not shown that it 1 is more likely than not that he would be tortured by or with 2 the acquiescence of a government official acting in an 3 official capacity. 4 5 For the foregoing reasons, the petition for review is 6
**DENIED** . As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is **VACATED** , and any pending motion for a stay of removal in 9 this petition is **DISMISSED**as moot. 10 11 FOR THE COURT: 12 CATHERINE O’HAGAN WOLFE, CLERK 13 14

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