         13-3265
         Sherpa v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 462 979
                                 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 TO 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 7th day of January, two thousand fifteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       NAMGYAL SHERPA,
14                Petitioner,
15
16                          v.                                  13-3265
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED
19       STATES ATTORNEY GENERAL,
20                     Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Khagendra Gharti-Chhetry, New York,
24                                        NY.
25
26       FOR RESPONDENT:                  Stuart F. Delery, Assistant Attorney
27                                        General; Anthony W. Norwood, Senior
28                                        Litigation Counsel; Manuel Palau,
29                                        Trial Attorney, Office of
 1                            Immigration Litigation, United
 2                            States Department of Justice,
 3                            Washington, D.C.

 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Namgyal Sherpa, a native and citizen of Nepal, seeks

 9   review of an August 14, 2013, decision of the BIA, affirming

10   the December 27, 2012, decision of an Immigration Judge

11   (“IJ”), denying his application for asylum, withholding of

12   removal, and relief pursuant to the Convention Against

13   Torture (“CAT”).    In re Namgyal Sherpa, No. A087 462 979

14   (B.I.A. Aug. 14, 2013), aff’g No. A087 462 979 (Immig. Ct.

15   N.Y.C. Dec. 27, 2012).    We assume the parties’ familiarity

16   with the underlying facts and procedural history in this

17   case.

18       Under the circumstances of this case, we have reviewed

19   the IJ’s and BIA’s decisions “for the sake of completeness.”

20   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

21   Cir. 2006).    The applicable standards of review are well

22   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

23   Holder, 562 F.3d 510, 513 (2d Cir. 2009).



                                    2
 1       For asylum applications like Sherpa’s, governed by the

 2   REAL ID Act of 2005, the agency may, “[c]onsidering the

 3   totality of the circumstances,” base a credibility

 4   determination on an asylum applicant’s demeanor, the

 5   plausibility of his account, and inconsistencies in his

 6   statements and other record evidence, “without regard to

 7   whether” they go “to the heart of the applicant’s claim.”      8

 8   U.S.C. § 1158(b)(1)(B)(iii).     “We defer . . . to an IJ’s

 9   credibility determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make such an adverse credibility ruling.”     Xiu Xia Lin

12   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

13   Substantial evidence supports the agency’s adverse

14   credibility determination.

15       The agency reasonably relied in part on Sherpa’s

16   demeanor, noting that he was at times unresponsive and

17   evasive.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Shu Wen Sun v.

18   BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam).     That

19   finding is supported by the record.

20       The IJ’s demeanor findings and the adverse credibility

21   determination as a whole are further supported by

22   inconsistencies in the record.     See Li Hua Lin v. U.S. Dep’t

23   of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be

                                    3
 1   still more confident in our review of observations about an

 2   applicant’s demeanor where, as here, they are supported by

 3   specific examples of inconsistent testimony.”).     The agency

 4   reasonably determined that inconsistencies in Sherpa’s

 5   evidence regarding his employment in Nepal reflected

 6   negatively on his credibility, particularly given his claim

 7   that Maoists harmed him in part on account of his activities

 8   as a trekking guide.     Sherpa testified that he worked for a

 9   certain trekking company after 2002, but his asylum

10   application listed different dates, as did a letter from

11   that company.   The agency also reasonably relied on Sherpa’s

12   omission from his application of a third company he

13   supposedly worked for part time.     See Xiu Xia Lin, 534 F.3d

14   at 166 n.3 (providing that for purposes of analyzing a

15   credibility determination, “[a]n inconsistency and an

16   omission are . . . functionally equivalent”).     The agency

17   was not required to credit his conflicting explanations for

18   these inconsistencies.     See Majidi v. Gonzales, 430 F.3d 77,

19   80-81 (2d Cir. 2005)

20       The agency also reasonably considered inconsistencies

21   and omissions concerning Sherpa’s medical treatment in

22   Nepal.   Despite repeated questions about the details of the

23   treatment he received after he was beaten by Maoists in

                                     4
 1   2006, Sherpa did not testify that he received an x-ray;

 2   rather, he emphatically stated that the doctor only looked

 3   at his bruises and gave him medicine.    But his doctor’s

 4   notes state that Sherpa was given an x-ray.     The agency was

 5   not required to credit his explanation that he misunderstood

 6   the Government’s questions in this regard because he

 7   provided responsive answers to those questions. See Majidi,

 8   430 F.3d at 80-81.     Moreover, a letter from Sherpa’s wife

 9   failed to mention that he sought medical treatment at all

10   after this incident.

11       The agency also found that Sherpa failed to adequately

12   corroborate his claim.    An applicant’s failure to

13   corroborate testimony may bear on credibility, either

14   because the absence of particular corroborating evidence is

15   viewed as suspicious, or because the absence of

16   corroboration in general makes an applicant unable to

17   rehabilitate testimony that has already been called into

18   question.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

19   Cir. 2007).    Sherpa does not challenge that finding.   See

20   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.

21   2005).

22       Given the demeanor, inconsistency, and corroboration

23   findings, substantial evidence supports the agency’s adverse

                                     5
 1   credibility determination.1     See Xiu Xia Lin, 534 F.3d at

 2   167.    That determination is dispositive of asylum,

 3   withholding of removal, and CAT as those claims are based on

 4   the same factual predicate.      Paul v. Gonzales, 444 F.3d 148,

 5   156-57 (2d Cir. 2006).

 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.      Any pending request for

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                  FOR THE COURT:
15                                  Catherine O’Hagan Wolfe, Clerk
16
17
18




              1
              The IJ improperly found that Sherpa omitted from
       his asylum application that he visited an herbal doctor
       after one encounter with Maoists because he stated that
       he sought treatment locally after that incident. See
       Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).
       Nevertheless, remand is unnecessary because the agency’s
       other findings constitute substantial evidence to support
       its adverse credibility determination as to Sherpa’s
       claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
       F.3d 315, 339 (2d Cir. 2006).

                                      6
