11-3175-ag

Sherpa v. Holder

BIA

Elstein, IJ

A097 849 206

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

New York, on the 22nd 4 day of June, two thousand twelve.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER, 

9 RAYMOND J. LOHIER, Jr.,

10 Circuit Judges. 

11 _____________________________________

12

13 RINJI SHERPA,

14 Petitioner, 

15

16 v. 11-3175-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Julie Mullaney, Mount Kisco, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Christopher C. Fuller,

28 Deputy Chief; Alison Marie Igoe,

29 Senior Counsel for National

30 Security, Office of Immigration

31 Litigation, United States Department

32 of 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 Rinji Sherpa, a native and citizen of Nepal,

6 seeks review of a July 11, 2011, order of the BIA, affirming

7 a September 9, 2009, decision of an Immigration Judge (“IJ”)

8 denying his application for asylum, withholding of removal,

9 and relief under the Convention Against Torture (“CAT”). In

10 re Rinji Sherpa, No. A097 849 206 (B.I.A. July 11, 2011),

11 aff’g No. A097 849 206 (Immig. Ct. N.Y. City Sept. 9, 2009).

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history in this case. 

14 We review both the BIA’s and IJ’s opinions, including

15 the portions of the IJ’s decision not explicitly discussed

16 by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394

17 (2d Cir. 2005). The applicable standards of review are well

18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

19 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

20 In addition to the statutory requirement that

21 petitioners exhaust each category of relief they seek, 

22 8 U.S.C. § 1252(d)(1), we require petitioners to raise
3

1 specific issues with the BIA that are later raised in this

2 Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). 

3 This issue exhaustion requirement is “mandatory,” and where,

4 as here, “the government points out . . . that an issue . .

5 . was not properly raised below, the court must decline to

6 consider that issue,” absent an extraordinary situation. 

7 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1

8 (2d Cir. 2007) (citing Marrero Pichardo v. Ashcroft, 374

9 F.3d 46, 52-53 (2d Cir. 2004)). 

10 Sherpa failed to exhaust his challenges to the IJ’s

11 adverse credibility determination before the BIA. Indeed,

12 the BIA explicitly noted that Sherpa failed to identify any

13 factual or legal errors in the IJ’s adverse credibility

14 determination or even mention credibility on appeal, and

15 Sherpa does not challenge this finding in his brief to this

16 Court. While we may consider an issue addressed by the BIA

17 that was not raised by an applicant in the course of an

18 appeal, see Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir.

19 1993), we decline to do so here, as excusing Sherpa’s

20 failure to exhaust would not serve one of the central

21 purposes of issue exhaustion, which is to give “the agency

22 responsible for construing and applying the immigration laws
4

1 and implementing regulations . . . a full opportunity to

2 consider a petitioner’s claims before they are submitted for

3 review by a federal court.” Theodoropoulos v. INS, 358 F.3d

4 162, 171 (2d Cir. 2004). See also Lin Zhong, 480 F.3d at

5 122 (reaffirming that this Court “may consider only those

6 issues that formed the basis for [the BIA’s] decision”).

7 Given that Sherpa’s asylum, withholding of removal, and

8 CAT claims shared the same factual predicate, Sherpa has not

9 shown that the agency erred in finding him ineligible for

10 relief due to his lack of credibility. See Paul v.

11 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Moreover,

12 because the IJ’s adverse credibility determination is

13 dispositive of Sherpa’s petition for review, we decline to

14 consider his challenge to the agency’s alternative basis for

15 denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). 

16 For the foregoing reasons, the petition for review is

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

18 removal that the Court previously granted in this petition

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

20 this petition is DISMISSED as moot. 

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

24