     14-1272
     Sherpa v. Lynch


                         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,
 4       on the 9th day of September, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                JOHN M. WALKER, Jr.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       LHAKPA NURU SHERPA,
13                Petitioner,
14
15                     -v.-                                            14-1272
16
17       LORETTA E. LYNCH, UNITED STATES
18       ATTORNEY GENERAL,*
19                Respondent.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR PETITIONER:                      H. RAYMOND FASANO,(with Ramesh
23                                            K. Shrestha on the brief),

               *
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.
                                                 1
 1                              YOUMAN, MADEO & FASANO, LLP,
 2                              New York, New York.
 3
 4   FOR RESPONDENT:            COLETTE J. WINSTON (with Anthony
 5                              C. Payne on the brief), for
 6                              Joyce R. Branda, Assistant
 7                              Attorney General, Civil
 8                              Division, Washington, District
 9                              of Columbia.
10
11        UPON DUE CONSIDERATION of this petition for review of a
12   Board of Immigration Appeals (“BIA”) decision, it is hereby
13   ORDERED, ADJUDGED, and DECREED that the petition for review
14   is DENIED.
15
16        Petitioner Lhakpa Nuru Sherpa, a native and citizen of
17   Nepal, seeks review of a April 3, 2014 decision of the BIA
18   affirming an October 20, 2011 decision of an Immigration
19   Judge (“IJ”) denying Sherpa’s application for asylum,
20   withholding of removal, and relief under the Convention
21   Against Torture (“CAT”). We assume the parties’ familiarity
22   with the underlying facts, the procedural history, and the
23   issues presented for review.
24
25         When, as here, “the BIA adopts the decision of the IJ
26   and merely supplements the IJ’s decision” this Court
27   “review[s] the decision of the IJ as supplemented by the
28   BIA.” Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
29   The applicable standards of review are well established.
30   See 8 U.S.C. § 1252(b)(4)(B); see also Lin v. Mukasey, 534
31   F.3d 162, 165-66 (2d Cir. 2008).
32
33        For asylum applications governed by the REAL ID Act,
34   such as Sherpa’s, the IJ may, considering the totality of
35   the circumstances, base a credibility finding on an
36   applicant’s demeanor as well as omissions and
37   inconsistencies in the applicant’s testimony without regard
38   to whether they go “to the heart of the applicant’s claim.”
39   8 U.S.C. § 1158(b)(1)(B)(iii); Lin, 534 F.3d at 165. We
40   “defer . . . to an IJ’s credibility determination unless,
41   from the totality of the circumstances, it is plain that no
42   reasonable fact-finder could make such an adverse
43   credibility ruling.” Lin, 534 F.3d at 167. And where “the
44   IJ’s adverse credibility finding is based on specific
45   examples in the record of inconsistent statements by the
46   asylum applicant about matters material to his claim of
47   persecution, or on contradictory evidence or inherently

                                  2
 1   improbable testimony regarding such matters, a reviewing
 2   court will generally not be able to conclude that a
 3   reasonable adjudicator was compelled to find otherwise.”
 4   Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir. 2005)
 5   (internal quotation marks and citations omitted).
 6   Accordingly, the “exceedingly narrow scope of our review . .
 7   . is designed to ensure merely that credibility findings are
 8   based upon neither a misstatement of the facts in the record
 9   nor bald speculation or caprice.” Id. at 80 (internal
10   quotation marks and citations omitted). Here, the totality
11   of the circumstances, including Sherpa’s demeanor, his
12   internally inconsistent testimony, and inconsistencies
13   between his testimony and record evidence, taken together,
14   sufficiently support the IJ’s credibility determination.
15
16        The IJ’s finding that Sherpa’s demeanor was somewhat
17   hesitant, nonresponsive, evasive and rehearsed formed the
18   basis for the IJ’s conclusion that Sherpa did not testify in
19   a forthright manner. One example cited by the IJ is on
20   direct examination, when Sherpa was asked when he joined the
21   Nepali Congress Party, Sherpa paused for a long period of
22   time and had difficulty answering the question. When
23   queried as to the hesitancy in his testimony, Sherpa gave
24   two conflicting explanations, first asserting that there
25   were no pauses, and then explaining that the hesitations in
26   his testimony were simply his way of talking. Contrary to
27   Sherpa’s assertion on appeal, the IJ properly assessed
28   Sherpa’s demeanor and supported that finding with a specific
29   record example. See Lin v. Gonzales, 446 F.3d 395, 400 (2d
30   Cir. 2006) (“Evasiveness is, of course, one of the many
31   outward signs a fact-finder may consider in evaluating
32   demeanor and in making an assessment of credibility.
33   Demeanor is virtually always evaluated subjectively and
34   intuitively, and an IJ therefore is accorded great deference
35   on this score . . . .”).
36
37        The IJ also supported its adverse credibility
38   determination by citing three inconsistencies in Sherpa’s
39   testimony. On direct examination, Sherpa testified that he
40   returned from a mountaineering expedition on April 24, 2005
41   and that he was attacked by the Maoists on June 22, 2005.
42   Subsequently, on cross-examination, Sherpa conceded that
43   during the period between April 24 and June 22, he was not
44   molested by the Maoists. At the conclusion of his
45   testimony, Sherpa was given the opportunity to rectify any
46   mistakes in his testimony and at this point, Sherpa
47   indicated that his return date from his expedition was

                                  3
 1   actually May 30, 2005. The IJ questioned Sherpa as to why
 2   he initially volunteered the date of April 24, 2005 and
 3   Sherpa simply stated that he made a mistake. Because of the
 4   line of questioning on cross-examination pertaining to the
 5   length of time Sherpa was free from danger perpetrated by
 6   the Maoists, the IJ found Sherpa’s inconsistent testimony on
 7   this issue to be a “significant discrepancy.” Certified
 8   Administrative Record (“CAR”) at 96.
 9
10        Similarly, the IJ observed that Sherpa maintained on
11   direct and cross-examination that his wife received a letter
12   from the Maoists’ sister organization, the Young Communist
13   League, in November 2009. Once Sherpa was shown a copy of
14   the letter, dated April 30, 2009, he again simply stated
15   that he made a mistake and that he was confused, despite
16   freely volunteering the November 2009 date on both direct
17   and cross-examination. Sherpa further testified on direct
18   examination that he joined the Nepali Youth Congress Party
19   on August 26, 2005 but changed this answer on cross-
20   examination to indicate that his association with the Nepali
21   Youth Congress Party actually began in 2000. As with his
22   previous answers, Sherpa offered nothing by way of
23   explanation for his discrepancy other than acknowledging
24   that he made a mistake. Thus, on this record, “the totality
25   of the circumstances supports the agency’s adverse
26   credibility determination.” Yan v. Holder, 578 F. App’x 4,
27   6 (2d Cir. 2014).
28
29        Sherpa contends that none of the IJ’s findings
30   pertaining to inconsistencies in dates should be credited
31   because of the significant differences between the Nepali
32   and Gregorian calendars. This argument was not made to the
33   IJ, and the record does not compel the conclusion that the
34   discrepancies in Sherpa’s answers were a result of
35   incongruity between the two calendars. “Our role does not
36   extend to hypothesiz[ing] excuses for the inconsistencies in
37   an asylum applicant’s testimony.” Majidi, 430 F.3d at 80
38   (internal quotation marks and citations omitted). Sherpa
39   has accordingly fallen short of prevailing on his petition.
40   See id. (“A petitioner must do more than offer a plausible
41   explanation for his inconsistent statements to secure
42   relief; he must demonstrate that a reasonable fact-finder
43   would be compelled to credit his testimony.”) (internal
44   quotation marks and citations omitted). The IJ’s adverse
45   credibility finding was therefore sufficient to deny Sherpa
46   asylum and withholding of removal. See Hoxhallari v.
47   Gonzales, 468 F.3d 179, 184 (2d Cir. 2006). And Sherpa’s

                                  4
 1   CAT claim must be rejected because he has not shown that it
 2   is more likely than not that he would be tortured by or with
 3   the acquiescence of a government official acting in an
 4   official capacity.
 5
 6        For the foregoing reasons, the petition for review is
 7   DENIED. As we have completed our review, any stay of
 8   removal that the Court previously granted in this petition
 9   is VACATED, and any pending motion for a stay of removal in
10   this petition is DISMISSED as moot.
11
12                              FOR THE COURT:
13                              CATHERINE O’HAGAN WOLFE, CLERK
14




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