11-3832 BIA Sherpa v. Holder Hom, IJ A099 697 129



### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 25 th** **day of April, two thousand thirteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **ROBERT A. KATZMANN,** 8 **BARRINGTON D. PARKER,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **PEMA CHHEWANG SHERPA,** 13 Petitioner**,** 14 15 **v. 11-3832** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Khagendra Gharti-Chhetry, New York,** 23 **N.Y.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Douglas E.** 27 **Ginsburg, Assistant Director; Deitz** 28 **P. Lefort, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON 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 Pema Chhewang Sherpa, a native and citizen of Nepal, 5 seeks review of an August 24, 2011, decision of the BIA 6 affirming the November 2, 2009, decision of Immigration 7 Judge (“IJ”) Sandy K. Hom, which denied his application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Pema Chhewang 10 Sherpa , No. A099 697 129 (B.I.A. Aug. 24, 2011),aff’gNo. 11 A099 697 129 (Immig. Ct. N.Y. City Nov. 2, 2009). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have 15 considered both the IJ’s and the BIA’s opinions “for the 16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 17 (2d Cir. 2008) (citation omitted). The applicable standards 18 of review are well-established. See8 U.S.C. 19 § 1252(b)(4)(B);see also Yanqin Weng v. Holder , 562 F.3d 20 510, 513 (2d Cir. 2009). 21

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2For asylum applications such as Sherpa’s, governed by 1 the amendments made to the Immigration and Nationality Act 2 by the REAL ID Act of 2005, the agency may, considering the 3 totality of the circumstances, base a credibility finding on 4 any inconsistencies or omissions in the applicant’s 5 statements, without regard to whether the inconsistencies or 6 omissions go “to the heart of the applicant’s claim.” See8 7 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 8 F.3d 162, 167 (2d Cir. 2008) (per curiam). 9 The agency found that Sherpa’s testimony was incredible 10 because his original asylum application filed in May 2006 11 and his amended application filed in July 2006 were 12 inconsistent with his testimony during his merits hearing 13 regarding alleged attacks by Maoists in 2002, 2003 and 2004. 14 Sherpa acknowledges the inconsistencies but argues that the 15 adverse credibility determination overly relied on the minor 16 discrepancies. However, the BIA reasonably found no clear 17 error in the IJ’s adverse credibility determination based on 18 the omissions and inconsistencies. See Xiu Xia Lin , 534 19 F.3d at 167. 20 Sherpa also argues that he was not legally responsible 21 for his May and July 2006 applications because he “did not 22

3understand the contents of the documents he signed.” 1 However, as the IJ noted, Sherpa’s signature on his 2 applications established a presumption that he was aware of 3 the contents of the applications. See 8 C.F.R. 4 § 1208.3(c)(2). Sherpa attempts to overcome this 5 presumption by explaining that the inconsistencies in his 6 first two asylum applications were “mistakes” caused by 7 “confusion” with his former attorney regarding when or 8 whether to file the applications. However, the agency 9 reasonably rejected this explanation because it contradicted 10 Sherpa’s testimony that he provided “examples” of his 11 interaction with the Maoists to a third party at his prior 12 attorney’s office who used his examples and “made up” false 13 information for his asylum applications. See Majidi v. 14 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that 15 the agency need not credit an applicant’s explanations for 16 inconsistent testimony unless those explanations would 17 compel a reasonable fact-finder to do so). 18 To the extent Sherpa argues that he is entitled to 19 withholding of removal and CAT relief independent from his 20 incredible testimony based on the background materials 21 submitted with his applications, Sherpa does not identify 22

4any specific record evidence indicating that he will be 1 singled out for harm on account of a protected ground, or 2 for any other reason thus, his generalized assertion of a 3 fear of future harm is merely speculative and inadequate to 4 meet his burden of proof. Jian Xing Huang v. INS , 421 F.3d 5 125, 129 (2d Cir. 2005) (per curiam) (absent “solid support” 6 in the record that his fear is objectively reasonable, a 7 petitioner’s claim is “speculative at best”). 8 Therefore, because the totality of the circumstances 9 supports the agency’s adverse credibility determination, we 10 defer to that finding. See8 U.S.C. § 1158(b)(1)(B)(iii); 11 Xiu Xia Lin , 534 F.3d at 167. As the only evidence of a 12 threat to Sherpa’s life or freedom depended upon his 13 credibility, the adverse credibility determination in this 14 case is dispositive of his claims for asylum, withholding of 15 removal, and CAT relief. See Paul v. Gonzales , 444 F.3d 16 148, 156 (2d Cir. 2006);Xue Hong Yang v. U.S. Dep’t of 17 Justice , 426 F.3d 520, 523 (2d Cir. 2005). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21 is VACATED, and any pending motion for a stay of removal in 22 this petition is DISMISSED as moot. Any pending request for 23 5oral argument in this petition is DENIED in accordance with 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b). 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5

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