11-3035-ag
Pempa v. Holder
                                                                                 BIA
                                                                           Elstein, IJ
                                                                        A097 485 497
                   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
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of May, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_____________________________________

NGAWANG PEMPA,
AKA CHIHIRING SHERPA NORPU,
AKA CHHIRING SHERPA NORPU,
         Petitioner,

                  v.                                    11-3035-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                Jin Hu, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               James A. Hunolt, Erica B. Miles,
                               Senior Litigation Counsel, Office of
                               Immigration Litigation, United States
                               Department of Justice, Washington,
                               D.C.
      UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

      Ngawang Pempa, who claims to be a native of Tibet and

citizen of China, seeks review of a June 27, 2011, order of

the BIA affirming the July 29, 2009, decision of Immigration

Judge (“IJ”) Annette S. Elstein, which denied his applications

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).     In re Ngawang Pempa, No.

A097 485 497 (B.I.A. June 27, 2011), aff’g No. A097 485 497

(Immig. Ct. N.Y. City July 29, 2009).     We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

      Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA.        See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).           The

applicable standards of review are well established. See 8

U.S.C. § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588

F.3d 90, 93-94 (2d Cir. 2009).

      Pempa challenges the agency’s denial of his application

for asylum and withholding of removal, arguing that through

his   credible   testimony,   he    established   and   reasonably

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corroborated his identity and his claim of persecution in

Tibet on account of his political opinion.             We deny the

petition for review, as the agency’s adverse credibility

determination is supported by substantial evidence. Shi Jie

Ge, 588 F.3d at 93-94

     In finding Pempa not credible, the agency reasonably

relied on testimony that was internally inconsistent and

conflicted with witness testimony as well as other evidence in

the administrative record.     See Secaida-Rosales v. INS, 331

F.3d 297, 308-09 (2d Cir. 2003).1        As the agency observed,

Pempa’s testimony was inconsistent with the testimony of his

sole witness regarding the distance between their homes in

Tibet, Pempa’s employment in Tibet, which animals the witness

raised in Tibet, whether Pempa had ever met the witness’s

husband, and where Pempa and the witness first saw each other

in   the   United   States.   The    agency   also   noted   internal

inconsistencies in Pempa’s testimony regarding when he first

met the Tibetan businesswoman who gave him a video showing

oppression of Tibetan political dissidents, how often Pempa


     1
      In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008),
we recognized that the Real ID Act abrogated in part the holding in
Secaida-Rosales for cases filed after May 11, 2005, the effective
date of the Act. Id. Because Pempa’s application was filed before
this date, Secaida-Rosales remains good law. See Dong Zhong Zheng
v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).

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worked for this businesswoman, and when he was arrested for

possession of the video.                  Finally, as the agency observed,

Pempa’s testimony that he threw away his Chinese national

identification card en route to Nepal conflicted with his

prior statement that this card was seized by the Chinese

police.

       Pempa      attempted         to    explain     his    inconsistencies        by

asserting      that    his     prior        inconsistent       testimony     was     a

“mistake” and that his witness didn’t “remember exactly.”

However,    the    agency      reasonably         declined     to   credit      these

explanations.      See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir.   2005)    (holding       that        an    agency     need   not   credit    an

applicant’s explanations for inconsistent testimony unless

those explanations would compel a reasonable fact-finder to do

so). Some of the inconsistencies noted by the agency, such as

the animals the witness raised in Tibet or the number of times

per year the Tibetan businesswoman visited Pempa, standing

alone, are “relatively minor and isolated and do not concern

material facts.”            See Diallo v. BIA, 548 F.3d 232, 234 (2d

Cir. 2008) (citing Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 335 (2d Cir. 2006)).                      However, when considered

cumulatively,         the     BIA        reasonably       determined     that      the


                                           -4-
inconsistencies   and   contradictions   in   the   administrative

record support the IJ’s adverse credibility finding.        Tu Lin

v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (internal

citations omitted); see also Xian Tuan Ye v. Dep’t of Homeland

Security, 446 F.3d 289, 294 (2d Cir. 2006) (“our review does

not permit us to engage in an independent evaluation of the

cold record or ask ourselves whether, if we were sitting as

fact finders, we would credit or discredit an applicant’s

testimony”) (internal citation omitted).      Because the record

supports the agency’s conclusions, a reasonable fact-finder

would not be compelled to conclude to the contrary.       See Xian

Tuan Ye, 446 F.3d at 294.

    Because the adverse credibility determination in this

case necessarily precludes Pempa from demonstrating either his

identity or that he suffered persecution, it necessarily

precludes success on his claim for asylum and withholding of

removal, rendering his other arguments moot.          See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wangchuck v. DHS,

448 F.3d 524, 528-29 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition
                              -5-
is DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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