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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 22 nd** **day of June, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **RAYMOND J. LOHIER, Jr.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **RINJI SHERPA,** 13 Petitioner**,** 14 15 **v. 11-3175-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Julie Mullaney, Mount Kisco, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Christopher C. Fuller,** 27 **Deputy Chief; Alison Marie Igoe,** 28 **Senior Counsel for National** 29 **Security, Office of Immigration** 30 **Litigation, United States Department** 31 **of Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Rinji Sherpa, a native and citizen of Nepal, 5 seeks review of a July 11, 2011, order of the BIA, affirming 6 a September 9, 2009, decision of an Immigration Judge (“IJ”) 7 denying his application for asylum, withholding of removal, 8 and relief under the Convention Against Torture (“CAT”). In 9 re Rinji Sherpa , No. A097 849 206 (B.I.A. July 11, 2011), 10 aff’gNo. A097 849 206 (Immig. Ct. N.Y. City Sept. 9, 2009). 11 We assume the parties’ familiarity with the underlying facts 12 and procedural history in this case. 13 We review both the BIA’s and IJ’s opinions, including 14 the portions of the IJ’s decision not explicitly discussed 15 by the BIA. See Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 16 (2d Cir. 2005). The applicable standards of review are well 17 established. See8 U.S.C. § 1252(b)(4)(B);Yanqin Weng v. 18 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 19 In addition to the statutory requirement that 20 petitioners exhaust each category of relief they seek, 21 8 U.S.C. § 1252(d)(1), we require petitioners to raise 223 specific issues with the BIA that are later raised in this 1

Court. See Foster v. INS , 376 F.3d 75, 78 (2d Cir. 2004). 2 This issue exhaustion requirement is “mandatory,” and where, 3 as here, “the government points out . . . that an issue . . 4 . was not properly raised below, the court must decline to 5 consider that issue,” absent an extraordinary situation. 6 Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 107 n.1 7 (2d Cir. 2007) (citing Marrero Pichardo v. Ashcroft , 374 8 F.3d 46, 52-53 (2d Cir. 2004)). 9 Sherpa failed to exhaust his challenges to the IJ’s 10 adverse credibility determination before the BIA. Indeed, 11 the BIA explicitly noted that Sherpa failed to identify any 12 factual or legal errors in the IJ’s adverse credibility 13 determination or even mention credibility on appeal, and 14 Sherpa does not challenge this finding in his brief to this 15 Court. While we may consider an issue addressed by the BIA 16 that was not raised by an applicant in the course of an 17 appeal, see Waldron v. INS , 17 F.3d 511, 515 n.7 (2d Cir. 18 1993), we decline to do so here, as excusing Sherpa’s 19 failure to exhaust would not serve one of the central 20 purposes of issue exhaustion, which is to give “the agency 21 responsible for construing and applying the immigration laws 224 and implementing regulations . . . a full opportunity to 1 consider a petitioner’s claims before they are submitted for 2 review by a federal court.” Theodoropoulos v. INS , 358 F.3d 3 162, 171 (2d Cir. 2004). See also Lin Zhong, 480 F.3d at 4 122 (reaffirming that this Court “may consider only those 5 issues that formed the basis for [the BIA’s] decision”). 6 Given that Sherpa’s asylum, withholding of removal, and 7 CAT claims shared the same factual predicate, Sherpa has not 8 shown that the agency erred in finding him ineligible for 9 relief due to his lack of credibility. See Paul v. 10 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). Moreover, 11 because the IJ’s adverse credibility determination is 12 dispositive of Sherpa’s petition for review, we decline to 13 consider his challenge to the agency’s alternative basis for 14 denial. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976). 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, any stay of 17 removal that the Court previously granted in this petition 18 is VACATED, and any pending motion for a stay of removal in 19 this petition is DISMISSED as moot. 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24