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.

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 25th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROBERT A. KATZMANN,

9 BARRINGTON D. PARKER,

10 Circuit Judges.

11 _____________________________________

12

13 PEMA CHHEWANG SHERPA,

14 Petitioner, 

15

16 v. 11-3832

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,

24 N.Y. 

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Douglas E.

28 Ginsburg, Assistant Director; Deitz

29 P. Lefort, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
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 Pema Chhewang Sherpa, a native and citizen of Nepal,

6 seeks review of an August 24, 2011, decision of the BIA

7 affirming the November 2, 2009, decision of Immigration

8 Judge (“IJ”) Sandy K. Hom, which denied his application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Pema Chhewang

11 Sherpa, No. A099 697 129 (B.I.A. Aug. 24, 2011), aff’g No.

12 A099 697 129 (Immig. Ct. N.Y. City Nov. 2, 2009). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have

16 considered both the IJ’s and the BIA’s opinions “for the

17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

18 (2d Cir. 2008) (citation omitted). The applicable standards

19 of review are well-established. See 8 U.S.C.

20 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

21 510, 513 (2d Cir. 2009).

22

2
1 For asylum applications such as Sherpa’s, governed by

2 the amendments made to the Immigration and Nationality Act

3 by the REAL ID Act of 2005, the agency may, considering the

4 totality of the circumstances, base a credibility finding on

5 any inconsistencies or omissions in the applicant’s

6 statements, without regard to whether the inconsistencies or

7 omissions go “to the heart of the applicant’s claim.” See 8

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

9 F.3d 162, 167 (2d Cir. 2008) (per curiam). 

10 The agency found that Sherpa’s testimony was incredible

11 because his original asylum application filed in May 2006

12 and his amended application filed in July 2006 were

13 inconsistent with his testimony during his merits hearing

14 regarding alleged attacks by Maoists in 2002, 2003 and 2004. 

15 Sherpa acknowledges the inconsistencies but argues that the

16 adverse credibility determination overly relied on the minor

17 discrepancies. However, the BIA reasonably found no clear

18 error in the IJ’s adverse credibility determination based on

19 the omissions and inconsistencies. See Xiu Xia Lin, 534

20 F.3d at 167. 

21 Sherpa also argues that he was not legally responsible

22 for his May and July 2006 applications because he “did not

3
1 understand the contents of the documents he signed.” 

2 However, as the IJ noted, Sherpa’s signature on his

3 applications established a presumption that he was aware of

4 the contents of the applications. See 8 C.F.R.

5 § 1208.3(c)(2). Sherpa attempts to overcome this

6 presumption by explaining that the inconsistencies in his

7 first two asylum applications were “mistakes” caused by

8 “confusion” with his former attorney regarding when or

9 whether to file the applications. However, the agency

10 reasonably rejected this explanation because it contradicted

11 Sherpa’s testimony that he provided “examples” of his

12 interaction with the Maoists to a third party at his prior

13 attorney’s office who used his examples and “made up” false

14 information for his asylum applications. See Majidi v.

15 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

16 the agency need not credit an applicant’s explanations for

17 inconsistent testimony unless those explanations would

18 compel a reasonable fact-finder to do so). 

19 To the extent Sherpa argues that he is entitled to

20 withholding of removal and CAT relief independent from his

21 incredible testimony based on the background materials

22 submitted with his applications, Sherpa does not identify

4
1 any specific record evidence indicating that he will be

2 singled out for harm on account of a protected ground, or

3 for any other reason thus, his generalized assertion of a

4 fear of future harm is merely speculative and inadequate to

5 meet his burden of proof. Jian Xing Huang v. INS, 421 F.3d

6 125, 129 (2d Cir. 2005) (per curiam) (absent “solid support”

7 in the record that his fear is objectively reasonable, a

8 petitioner’s claim is “speculative at best”).

9 Therefore, because the totality of the circumstances

10 supports the agency’s adverse credibility determination, we

11 defer to that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii);

12 Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a

13 threat to Sherpa’s life or freedom depended upon his

14 credibility, the adverse credibility determination in this

15 case is dispositive of his claims for asylum, withholding of

16 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d

17 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

18 Justice, 426 F.3d 520, 523 (2d Cir. 2005).

19 For the foregoing reasons, the petition for review is

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

21 removal that the Court previously granted in this petition

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

23 this petition is DISMISSED as moot. Any pending request for

5
1 oral argument in this petition is DENIED in accordance with

2 Federal Rule of Appellate Procedure 34(a)(2), and Second

3 Circuit Local Rule 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6