         09-2942-ag
         Sherpa v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A093 408 699
                                                                               A093 408 700
                                                                               A093 408 701
                             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 22 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _______________________________________
12
13       MINGMA DORJE SHERPA, PUNAM SHIRPA,
14       DAWA LHAMU SHERPA,
15                Petitioner,
16
17                          v.                                  09-2942-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Khaghendra Gharti-Chhetry, Chhetry &
25                                     Associates, P.C., New York, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Michelle Gorden Latour,
1                            Assistant Director; Tracie N. Jones,
2                            Trial Attorney, Office of
3                            Immigration Litigation, Civil
4                            Division, United States Department
5                            of Justice, Washington, D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       The Petitioners, Mingma Dorje Sherpa and his daughter

12   Dawa Lhamu Sherpa, both natives and citizens of Nepal, along

13   with his wife, Punam Sherpa, a native of India and a citizen

14   of Nepal, all seek review of a June 11, 2009, order of the

15   BIA affirming the August 27, 2007, decision of Immigration

16   Judge (“IJ”) Sandy K. Hom denying their application for

17   asylum, withholding of removal, and relief under the

18   Convention Against Torture (“CAT”). *   In re Sherpa, Nos.

19   A093 408 699/700/701 (B.I.A. June 11, 2009), aff’g Nos. A093

20   408 699/700/701 (Immig. Ct. N.Y. City Aug. 27, 2007).     We

21   assume the parties’ familiarity with the underlying facts

22   and procedural history in this case.

23       Under the circumstances of this case, we review the


            *
             Mingma Sherpa was the lead applicant, including his
       wife and daughter as derivative applicants on his asylum
       application.

                                   2
1    IJ’s decision as modified by the BIA decision, omitting the

2    arguments for denying relief that were rejected by the BIA.

3    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

4    522 (2d Cir. 2005).   “We defer . . . to an IJ’s credibility

5    determination unless, from the totality of the

6    circumstances, it is plain that no reasonable factfinder

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

8    v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see 8 U.S.C.

9    § 1158(b)(1)(B)(iii);.

10       Substantial evidence supports the IJ’s adverse

11   credibility determination.   In evaluating the Sherpas’

12   credibility, the IJ found that: (1) Mingma and Punam

13   testified inconsistently regarding when and why they first

14   sought to leave Nepal; and (2) Mingma testified

15   inconsistently regarding the fate of a fellow co-worker who

16   reported similar Maoist threats to the U.S. Embassy.      In

17   their brief, the Sherpas acknowledge the inconsistencies in

18   their testimony, but argue that they are too minor to

19   support an adverse credibility determination.     Contrary to

20   the Sherpas’ argument, “an IJ may rely on any inconsistency

21   or omission in making an adverse credibility determination

22   as long as the ‘totality of the circumstances’ establishes


                                   3
1    that an asylum applicant is not credible.”     Xiu Xia Lin, 534

2    F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))

3    (emphasis in original); see Matter of J-Y-C-, 24 I. & N.

4    Dec. 260, 265 (BIA 2007).     Moreover, although the Sherpas

5    argue that they adequately explained their inconsistent

6    testimony, a reasonable factfinder would not have been

7    compelled to credit their explanations.     See Majidi v.

8    Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

9        Because the Sherpas’ claims for withholding of removal

10   and CAT relief share the same factual predicate as their

11   asylum claim, the IJ’s adverse credibility finding is fatal

12   to those claims as well.    See Paul v. Gonzales, 444 F.3d

13   148, 156-57 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17
18
19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21




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