         10-1790-ag
         Sherpa v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A096 265 980


                             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
 4       New York, on the 19 th day of January, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                     Circuit Judges.
11       ______________________________________
12
13       PASANG SHERPA, AKA KISHWOR SHERPA,
14                Petitioner,
15
16                          v.                                  10-1790-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Leslie McKay, Assistant
27                                     Director; Melissa Lott, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, Washington D.C.
30
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 is

4    DENIED.

5          Petitioner Pasang Sherpa, a native and citizen of Nepal,

6    seeks review of the April 8, 2010, order of the BIA affirming

7    the   March      27,    2008,   decision      of   Immigration    Judge    (“IJ”)

8    Annette     S.    Elstein       denying    his     application    for     asylum,

9    withholding of removal, and CAT relief.                 In re Pasang Sherpa,

10   No. A096 265 980 (B.I.A. Apr. 8, 2010), aff’g No. A096 265 980

11   (Immig. Ct. N.Y. City Mar. 27, 2008).                 We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14         The government argues that Sherpa failed to exhaust any

15   challenge to the IJ’s adverse credibility determination by

16   neglecting to address that determination on appeal to the BIA.

17   We agree.     While Sherpa stated in his Notice of Appeal to the

18   BIA that he “was a credible witness,” he failed to articulate

19   any   error      in    the   IJ’s   credibility      determination,       or   even

20   acknowledge the IJ’s specific findings.                 In his brief to this

21   Court, Sherpa does not address the government’s exhaustion

22   argument,        but    instead      challenges      the   IJ’s    credibility


                                               2
1    determination with specificity.

2        In addition to the statutory requirement that petitioners

3    exhaust    the    categories       of    relief       they   seek,   8     U.S.C.

4    § 1252(d)(1), this Court generally will not consider arguments

5    regarding individual issues that were not exhausted before the

6    agency.    Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

7    119-20    (2d    Cir.    2007).     While       not    jurisdictional,       this

8    judicially-imposed issue exhaustion requirement is mandatory.

9    Id. at 119-20.        In particular, a petitioner must challenge all

10   findings that are dispositive of his claims, and the failure

11   to do so is fatal to his petition for review.                   See Steevenez

12   v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007).                        Although

13   this Court has held that it may consider an issue not raised

14   by an applicant in the course of an appeal to the BIA when the

15   BIA nevertheless addressed the issue, Waldron v. INS, 17 F.3d

16   511, 515 n.7 (2d Cir. 1993), the BIA did not excuse Sherpa’s

17   failure to exhaust when it explicitly noted that Sherpa did

18   not challenge any of the IJ’s findings with particularity.

19   Therefore, considering Sherpa’s new arguments would defeat the

20   purpose of the issue exhaustion requirement – to allow the

21   agency to review its own decisions for error after having the

22   opportunity      to     consider   the       applicant’s     arguments.       See


                                              3
1    Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir. 2004).

2        Even if we were to reach Sherpa’s unexhausted arguments,

3    they are entirely without merit.

4        For the foregoing reasons, the petition for review is

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

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15
16




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