     15-61
     Sherpa v. Lynch
                                                                                      BIA
                                                                                  Segal, IJ
                                                                              A200 748 026
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of July, two thousand sixteen.
 5
 6   PRESENT: REENA RAGGI,
 7            DEBRA ANN LIVINGSTON,
 8            RAYMOND J. LOHIER, JR.,
 9                 Circuit Judges.
10   _____________________________________
11
12   SAMDEN SHERPA,
13                 Petitioner,
14
15                     v.                                           15-61
16                                                                  NAC
17   LORETTA E. LYNCH, UNITED STATES
18   ATTORNEY GENERAL,
19                 Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                       Stuart Altman, Esq., New York,
23                                         New York.
24
25   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
26                                         Deputy     Assistant     Attorney
27                                         General; Jennifer P. Williams,
28                                         Senior Litigation Counsel; Neelam
1                                   Ihsanullah,    Trial    Attorney,
2                                   Office of Immigration Litigation,
3                                   United   States   Department   of
4                                   Justice, Washington, D.C.
5
6          UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, and DECREED that the petition for review is

9    DENIED.

10         Petitioner Samden Sherpa, a native and citizen of Nepal,

11   seeks review of a December 17, 2014 decision of the BIA affirming

12   a July 25, 2013 decision of an Immigration Judge (“IJ”) denying

13   Sherpa’s application for asylum, withholding of removal, and

14   relief under the Convention Against Torture (“CAT”).        See In

15   re Samden Sherpa, No. A200 748 026 (B.I.A. Dec. 17, 2014), aff’g

16   No. A200 748 026 (Immig. Ct. N.Y.C. July 25, 2013).       We assume

17   the   parties’   familiarity   with   the   underlying   facts   and

18   procedural history in this case, which we reference only as

19   necessary to explain our decision to deny the petition for

20   review.

21         Under the circumstances of this case, where the BIA has

22   affirmed the decision of the IJ on grounds that closely track

23   her reasoning, we review both the BIA’s decision and the IJ’s

24   decision “for the sake of completeness.”        Wangchuck v. U.S.

25   Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).        The
                                     2
1    applicable standards of review are well established.                       See

2    8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

3    165–66 (2d Cir. 2008).         For asylum applications like Sherpa’s,

4    governed by the REAL ID Act, the agency may, “[c]onsidering the

5    totality of the circumstances, . . . base a credibility

6    determination on the demeanor, candor, or responsiveness of the

7    applicant    or    witness,     the   inherent     plausibility       of   the

8    applicant’s or witness’s account,” and inconsistencies in an

9    applicant’s statements and other record evidence “without

10   regard to whether” they go “to the heart of the applicant’s

11   claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.

12   Mukasey,    534    F.3d   at    163-64.         Here,   the    IJ’s   adverse

13   credibility       determination       is   supported      by     substantial

14   evidence.

15       The     IJ    reasonably    relied     on   inconsistencies       between

16   Sherpa’s testimony and the documentary evidence.                       Sherpa

17   testified     that    Maoists     targeted       his    family   in    Nepal;

18   specifically, that in June 2010 four Maoists beat his wife.

19   When questioned about his wife’s injuries, Sherpa testified

20   that his wife did not seek medical treatment because the Maoists

21   “only slapped her two, four times and gave her life threat and

22   then left.”       A.R. 196.

                                           3
1        As    the    IJ   found,   Sherpa’s       documentary    evidence

2    contradicted his testimony.    The hospital report he submitted

3    showed that his wife was admitted to the hospital in June 2010,

4    “in the state of unconscious due to [injuries] from the physical

5    assault” and with extensive bruising and a broken nose, and was

6    treated “for 15 days and discharged while she was able to walk.”

7    Id. at 325.     When asked to explain the discrepancy, Sherpa

8    admitted that his wife sent him the report and that he had seen

9    it, but “forgot.”     Id. at 84.       After additional questioning,

10   Sherpa testified he did not remember the report because he “had

11   a lot of tensions about [his] family all the time.”         Id. at 93.

12       The IJ was not required to credit Sherpa’s explanation for

13   the omission given the seriousness of his wife’s injuries and

14   his testimony that he asked his wife to obtain and send him the

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

16   2005).

17       The adverse credibility determination is further supported

18   by Sherpa’s inconsistent testimony regarding his questioning

19   by Maoists.     An IJ may rely on testimony that is internally

20   inconsistent or an applicant’s lack of responsiveness to

21   questioning.    See 8 U.S.C. § 1158(b)(1)(B)(iii).          Moreover,

22   this court pays “particular deference” to findings based on the

                                        4
1    adjudicator’s observation of the applicant’s demeanor, “in

2    recognition of the fact that the IJ’s ability to observe the

3    witness’s demeanor places [her] in the best position to evaluate

4    whether apparent problems in the witness’s testimony suggest

5    a lack of credibility or, rather, can be attributed to an

6    innocent cause such as difficulty understanding the question.”

7    Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

8    2005) (internal quotation marks omitted).

9           When testifying about Maoists coming to his home in 2009,

10   Sherpa testified that they asked him about living in the United

11   States and, after that questioning, told him they hated the

12   United States.      When asked by his own attorney to specify what

13   questions the Maoists asked, he reiterated that they accused

14   him of bringing western culture to Nepal.                           When asked to

15   clarify, he again stated that the Maoists hated Americans.                             At

16   that    point,     the        IJ     interjected,         noted     the        lack    of

17   responsiveness,         and    asked     the      question        again.         Sherpa

18   ultimately said that the Maoists did not ask questions, but

19   demanded       money.          The     IJ       reasonably        relied       on     the

20   unresponsiveness and internal inconsistency of this testimony.

21   See 8 U.S.C. § 1158(b)(1)(B)(iii).

22          These   inconsistencies          suffice      to    support        an    adverse

                                                 5
1    credibility determination.   In a post-REAL ID Act case, “an IJ

2    may rely on any inconsistency or omission in making an adverse

3    credibility determination as long as the ‘totality of the

4    circumstances’ establishes that an asylum applicant is not

5    credible.”   Xiu Xia Lin v. Mukasey, 534 F.3d at 167 (quoting

6    8 U.S.C. § 1158(b)(1)(B)(iii)).       The inconsistencies here

7    easily satisfy that standard as they relate to the basis of

8    Sherpa’s claim—his own interaction with the Maoists and the

9    Maoists’ attack on his wife.       See Xian Tuan Ye v. Dep’t of

10   Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).

11       In addition, the lack of reliable corroborating evidence

12   further supports the IJ’s adverse credibility determination.

13   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

14   The IJ reasonably afforded little weight to the police and

15   hospital reports of the attack on Sherpa’s wife because Sherpa

16   provided inconsistent testimony about the attack and resulting

17   medical care.   Similarly, the IJ acted within her discretion

18   in giving diminished weight to an unauthenticated medical

19   certificate and to Sherpa’s father’s affidavit.     See id.

20       Nor did the IJ fail to give proper weight to the testimony

21   of Sherpa’s brother, who had been awarded asylum, or to consider

22   country reports.   Although the IJ did find Sherpa’s brother

                                    6
1    credible, his testimony was limited to his own political

2    activities in Nepal and what Sherpa had told him with respect

3    to his own experiences.    Accordingly, this testimony could not

4    rehabilitate Sherpa’s testimony, as Sherpa’s brother had no

5    independent knowledge of Sherpa’s experiences.      And, contrary

6    to Sherpa’s contention, the IJ did consider the proffered

7    country reports, which also do not cure the inconsistencies in

8    Sherpa’s testimony.

9        Given    the    inconsistencies,   omissions,   unresponsive

10   testimony, and lack of reliable corroborating evidence, the

11   totality of the circumstances supports the adverse credibility

12   determination.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

13   Mukasey, 534 F.3d at 165-66.     This finding is dispositive of

14   asylum, withholding of removal, and CAT relief, as all three

15   claims were based on the same factual predicate.      See Paul v.

16   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006) (withholding);

17   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

18   Cir. 2005) (CAT).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,

22   and any pending motion for a stay of removal in this petition

                                     7
1   is DISMISSED as moot.   Any pending request for oral argument

2   in this petition is DENIED in accordance with Federal Rule of

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

4   34.1(b).

5                           FOR THE COURT:
6                           Catherine O’Hagan Wolfe, Clerk of Court




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