     Case: 18-60111      Document: 00515053910         Page: 1    Date Filed: 07/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 18-60111                              FILED
                                  Summary Calendar                        July 29, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
PASANG SHERPA,

                                                 Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A209 874 650


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Pasang Sherpa, a native and citizen of Nepal, petitions this court to
review the dismissal of his appeal from the Board of Immigration Appeal’s
(“BIA”) denial of asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). He also petitioned the court to review the
BIA’s denial of his motion to reopen the proceedings. We DENY the two
petitions for review.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-60111

              FACTUAL AND PROCEDURAL BACKGROUND
      Sherpa entered the United States without authorization in March 2017.
The next month, he received a notice to appear. The government sought his
removal as an alien who had entered the country without valid documents.
Thereafter, Sherpa conceded removability but filed an asylum application
claiming he would be tortured if he were returned to his native Nepal. At a
hearing before an immigration judge (“IJ”) in Louisiana in August 2017, in
which he was represented by counsel, Sherpa testified that in Nepal he had
supported the Congress Party. He had been persecuted for this political stance
by Maoists and had a well-founded fear of renewed persecution if he returned.
The IJ found Sherpa not to be credible due to statements that were inconsistent
with his asylum application and other statements that were implausible. The
IJ denied his application for relief at the end of the hearing, then later issued
an oral explanation. Sherpa appealed.
      On January 19, 2018, the BIA dismissed Sherpa’s appeal. It held as to
the request for asylum that the IJ had validly relied on inconsistencies in
Sherpa’s testimony to conclude he was not credible as to his supposed
persecution. In addition, part of Sherpa’s chronology of events in Nepal was
implausible. Regarding the request for relief under the Convention Against
Torture, the BIA agreed with the IJ that Sherpa had not carried his burden to
show it to be more likely than not that he would be tortured if he returned to
Nepal. There too, the IJ had found Sherpa not credible.
      Sherpa filed a petition for review with this court but also filed a timely
motion to reopen at the BIA. A second decision was entered by the BIA on May
23, 2018, denying the motion. Sherpa then filed a second petition for review.




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                                     No. 18-60111

                                     DISCUSSION
      We review only the BIA’s decision “unless the IJ’s [immigration judge’s]
decision has some impact on the BIA’s decision.” Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). We review a finding that an alien was not credible
under the substantial evidence standard and consider whether the “record
compels belief in [his] story.” Id. at 539-40.
       We find no error in the determination that, based on inconsistencies in
his story about the timing of relevant events and where he was living at
different times, Sherpa was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Wang, 569 F.3d at 538-39. The BIA considered but was not required to accept
Sherpa’s explanation that the inconsistencies were attributable to his lack of
education. See Morales v. Sessions, 860 F.3d 812, 817 (5th Cir. 2017). 1
          That adverse credibility determination, taken with the evidence
provided by the government supporting removal, constitutes substantial
evidence to support the decision to deny Sherpa asylum, withholding of
removal, and CAT relief. See Wang, 569 F.3d at 537-40. “Without credible
evidence, the BIA had no basis upon which to grant asylum or withhold
deportation.” Chun v. I.N.S., 40 F.3d 76, 79 (5th Cir. 1994).
       Because the finding that Sherpa was not credible is sufficient to deny the
petition for review, we need not consider the alternative holding made by the
IJ that even if he had been credible, Sherpa was ineligible for relief.
      Sherpa also petitions this court to review the BIA’s order denying his
motion to reopen the removal proceeding based on a change of conditions in
Nepal and a recent incident between his parents and Maoists there. We review
the denial of a motion to reopen under a “highly deferential abuse-of-discretion


      1   We lack jurisdiction to consider Sherpa’s unexhausted argument that the
inconsistencies can be explained by his confusion converting dates from the Nepali calendar
to the Western calendar. See Monteon-Camargo v. Barr, 918 F.3d 423, 429 (5th Cir. 2019).


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                                 No. 18-60111

standard, regardless of the basis of the alien’s request for relief.” Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We “must affirm the
BIA’s decision as long as it is not capricious, without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Id. The BIA’s reliance on the adverse
credibility determination in denying the motion to reopen was not capricious,
without foundation in the record, or so irrational as to be arbitrary rather than
the result of any perceptible rational approach. Accordingly, the BIA did not
abuse its discretion.
      We also “review the BIA’s decision ‘procedurally’ to ensure that the
complaining applicant has received full and fair consideration of all
circumstances that give rise to his or her claims.” Roy v. Ashcroft, 389 F.3d
132, 139 (5th Cir. 2004) (citation omitted). The BIA’s acknowledgement of
Sherpa’s claim of changed country conditions was “sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely
reacted.” Id.
      The petitions for review are DENIED.




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