         11-3336-ag
         Sherpa v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 560 889


                             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 1st day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       MINMAR SHERPA,
14                Petitioner,
15
16                          v.                                  11-3336-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Khagendra Gharti-Chhetry, New York,
24                                     N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Richard M. Evans, Assistant
28                                     Director; Ann Carroll Varnon, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 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

 4   is DENIED.

 5       Minmar Sherpa, a native and citizen of Nepal, seeks

 6   review of a July 21, 2011, order of the BIA affirming the

 7   May 19, 2010, decision of Immigration Judge (“IJ”) Alan A.

 8   Vomacka, which denied her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Minmar Sherpa, No. A087 560

11   889 (B.I.A. July 21, 2011), aff’g A087 560 889 (Immig. Ct.

12   N.Y. City May 19, 2010).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

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

21       For applications such as Sherpa’s, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, the agency may, considering the

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 1   totality of the circumstances, base a credibility finding on

 2   the applicant’s “demeanor, candor, or responsiveness,” the

 3   plausibility of her account, and inconsistencies in her

 4   statements, without regard to whether they go “to the heart

 5   of the applicant’s claim.”     See 8 U.S.C. §

 6   1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 7   167 (2d Cir. 2008).   We will “defer . . . to an IJ’s

 8   credibility determination unless, from the totality of the

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

10   could make” such a ruling.     Xiu Xia Lin, 534 F.3d at 167.

11       The IJ’s adverse credibility determination is supported

12   by substantial evidence.     The IJ reasonably based his

13   credibility finding on the following: (1) Sherpa’s

14   inconsistent testimony regarding who sent the demand letter

15   she allegedly received from Maoists; (2) the inconsistencies

16   between her testimony and her application regarding the year

17   she fled to Kathmandu and the year that Maoists attempted to

18   kidnap her; (3) her failure to mention in her application

19   her discovery that Maoists worked with her in a Kathmandu

20   restaurant; and (4) the memorized nature of her testimony.

21   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

22   Furthermore, the IJ reasonably afforded minimal weight to


                                     3
 1   Sherpa’s personal evidence due to the unusually specific and

 2   detailed nature of her testimony regarding events that

 3   occurred six to ten years earlier.     Cf. Xiao Ji Chen v. U.S.

 4   Dep’t of Justice, 471 F.3d 315, 337-38, 338 n.17 (2d Cir.

 5   2006).

 6       Given the omission, internally inconsistent testimony,

 7   inconsistencies between Sherpa’s testimony and her

 8   application, the lack of reliable corroboration, and the

 9   IJ’s negative demeanor finding, the totality of the

10   circumstances supports the IJ’s adverse credibility

11   determination.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

12   Lin, 534 F.3d at 167.    Because the IJ reasonably found that

13   Sherpa’s background evidence did not demonstrate an

14   objective basis for fearing persecution or torture, the only

15   evidence of a threat to Sherpa’s life or freedom depended on

16   her credibility.    The adverse credibility determination is

17   also fatal to Sherpa’s claim for withholding of removal and

18   CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

19   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

20   520, 523 (2d Cir. 2005).

21       For the foregoing reasons, the petition for review is

22   DENIED.   Any pending motion for a stay of removal in this


                                     4
1   petition is DISMISSED as moot. Any pending request for oral

2   argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8




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