         10-3496-ag
         Sherpa v. Holder
                                                                                        BIA
                                                                                  Abrams, IJ
                                                                               A089 252 045
                                                                               A089 252 046
                             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 15th day of November, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RAYMOND J. LOHIER, JR.,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _______________________________________
13
14       PASANG DAWA SHERPA, ANG CHHOKPA SHERPA,
15                Petitioners,
16
17                          v.                                  10-3496-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONERS:              Ramesh K. Shrestha, New York, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Terri J. Scadron, Assistant
28                                     Director; Genevieve Holm, 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 DISMISSED, in part, and DENIED, in part.

 5       Pasang Dawa Sherpa and Ang Chhokpa Sherpa, natives and

 6   citizens of Nepal, seek review of an August 3, 2010,

 7   decision of the BIA affirming the January 14, 2009, decision

 8   of Immigration Judge (“IJ”) Steven R. Abrams, which denied

 9   their applications for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Pasang Dawa Sherpa, Ang Chhokpa Sherpa, Nos. A089 252

12   045/046 (B.I.A. Aug. 3, 2010), aff’g Nos. A089 252 045/046

13   (Immig. Ct. N.Y. City Jan. 14, 2009).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we have

17   considered both the IJ’s and the BIA’s opinions “for the

18   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237

19   (2d Cir. 2008) (internal citation omitted). The applicable

20   standards of review are well established.     See 8 U.S.C.

21   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

22   (2d Cir. 2009).

23

                                   2
 1       Petitioners failed to appeal the IJ’s denial of CAT

 2   relief to the BIA, and, as a result, we are without

 3   jurisdiction to consider this unexhausted claim.     See

 4   8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119

 5   (2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59

 6   (2d Cir. 2003)).   Moreover, we do not have jurisdiction to

 7   review the agency’s finding that Petitioners’ asylum

 8   application was untimely under 8 U.S.C. § 1158(a)(2)(B), or

 9   its finding that neither changed nor extraordinary

10   circumstances excused Petitioners’ untimeliness under 8

11   U.S.C. § 1158(a)(2)(D).   See 8 U.S.C. § 1158(a)(3).

12   Although we retain jurisdiction to review constitutional

13   claims and “questions of law,” see 8 U.S.C. § 1252(a)(2)(D),

14   Petitioners’ challenge to the IJ’s finding that they did not

15   establish either changed or extraordinary circumstances is

16   simply a challenge to the agency’s fact-finding

17   determination and exercise of discretion, over which we do

18   not have jurisdiction, see 8 U.S.C. § 1158(a); Xiao Ji Chen

19   v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

20   Accordingly, the only issue before us is whether the agency

21   erred in denying withholding of removal.

22



                                   3
 1       The BIA has defined persecution as a “threat to the

 2   life or freedom of, or the infliction of suffering or harm

 3   upon, those who differ in a way regarded as offensive.”

 4   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

 5   overruled, in part, on other grounds, INS v.

 6   Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

 7   U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

 8   The harm must be sufficiently severe, rising above “mere

 9   harassment.”   Ivanishvili, 433 F.3d at 341.    Here, the

10   agency addressed the harassment and intimidation described

11   by Petitioners, including visits at their home, threats by

12   the Maoists, and one incident in which a Maoist hit Pasang

13   Sawa Sherpa on the shoulder with the butt of a gun. The

14   agency reasonably concluded that, considered cumulatively,

15   these incidents were insufficiently severe to constitute

16   persecution.   See id.; see also Gui Ci Pan v. U.S. Attorney

17   Gen., 449 F.3d 408, 412 (2d Cir. 2006).

18       Petitioners also argued that, in addition to their past

19   persecution, they fear future persecution if they return to

20   Nepal, because a Maoist was allegedly killed by the police

21   after leaving Petitioners’ home, and the Maoists allegedly

22   thought Petitioners were responsible.     However, as noted by


                                   4
 1   the IJ, Petitioners conceded that they did not witness the

 2   alleged incident, and provided no corroboration even though

 3   evidence was reasonably available.   We have held that the

 4   agency may require corroboration despite otherwise credible

 5   testimony.   See Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5

 6   (2d Cir. 2009) (holding that “while a failure to corroborate

 7   can suffice, without more, to support a finding that an

 8   alien has not met his burden of proof, a failure to

 9   corroborate cannot, without more, support an adverse

10   credibility determination”).   Despite Petitioners’ arguments

11   that their testimony was sufficient to demonstrate that they

12   would be persecuted in Nepal, it was not unreasonable for

13   the agency to require corroborating evidence, as

14   Petitioners’ testimony consisted solely of recounting what

15   they had been told by other individuals.   See id. at 196-97;

16   see also 8 U.S.C. § 1158(b)(1)(B)(i).

17       When an IJ “determines that the applicant should

18   provide evidence that corroborates otherwise credible

19   testimony, such evidence must be provided unless the

20   applicant does not have the evidence and cannot reasonably

21   obtain the evidence.”   8 U.S.C. § 1158(b)(1)(B)(ii).   Here,

22   the IJ identified the type of corroborating evidence that

23   Petitioners should have presented, including documentation
                                    5
 1   regarding the death of the Maoist, as well as any evidence

 2   indicating that the Maoists have come looking for them,

 3   harmed their family, or confiscated their property.    In

 4   their appeal to the BIA, Petitioners did not sufficiently

 5   address or explain why such evidence was not reasonably

 6   available.    Consequently, substantial evidence supports the

 7   agency’s determination that Petitioners could have

 8   reasonably provided corroborating evidence, and without any

 9   corroborating evidence, failed to meet their burden of

10   showing they would be persecuted in Nepal.    See 8 U.S.C.

11   § 1252(b)(4); Diallo v. INS, 232 F.3d 279, 290 (2d Cir.

12   2000); see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

13   Cir. 2005).    Because Petitioners were unable to show either

14   past persecution or a clear probability of future

15   persecution in Nepal, the agency did not err in denying

16   their application for withholding of removal.    See 8 C.F.R.

17   § 1208.16(b)(1); Ramsameachire v. Ashcroft, 357 F.3d 169,

18   178 (2d Cir. 2004).

19       For the foregoing reasons, the petition for review is

20   DISMISSED in part and DENIED in part.    As we have completed

21   our review, any stay of removal that the Court previously

22   granted in connection with this petition is VACATED, and any

23   pending motion for a stay of removal in this petition is
                                    6
1   DISMISSED as moot. Any pending request for oral argument in

2   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
7
8




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