         09-2887-ag
         Sherpa v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A099 928 380
                             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 21 st day of January, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       GELJEN SHERPA,
15                Petitioner,
16
17                          v.                                  09-2887-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:          Ramesh K. Shrestha, New York, New York.
25
26       FOR RESPONDENT:          Tony West, Assistant Attorney General;
27                                Blair T. O’Connor, Assistant Director;
28                                Elizabeth D. Kurlan, Trial Attorney,
29                                Office of Immigration Litigation, Civil
30                                Division, United States Department of
31                                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         Petitioner Geljen Sherpa, a native and citizen of

6    Nepal, seeks review of a June 19, 2009, order of the BIA

7    affirming the September 20, 2007, decision of Immigration

8    Judge (“IJ”) Javier Balasquide denying Sherpa’s application

9    for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Geljen Sherpa,

11   No. A099 928 380 (B.I.A. June 19, 2009), aff’g No. A099 928

12   380 (Immig. Ct. N.Y. City Sept. 20, 2007).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15        Under the circumstances of this case, we review only

16   the IJ’s decision.     See Shunfu Li v. Mukasey, 529 F.3d 141,

17   146 (2d Cir. 2008).     The applicable standards of review are

18   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Jian Hui

19   Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008);

20   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

21   I.   Adverse Credibility Finding

22        Substantial evidence supports the IJ’s determination


                                     2
1    that Sherpa was not credible as to his account of events

2    after he relocated to Kathmandu in 2001.     For asylum

3    applications governed by the amendments made to the

4    Immigration and Nationality Act by the REAL ID Act of 2005,

5    the IJ may, considering the totality of the circumstances,

6    base a credibility finding on an asylum applicant’s

7    demeanor, the plausibility of his or her account, and

8    inconsistencies in his or her statements, “without regard to

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

10   U.S.C. § 1158(b)(1)(B)(iii).

11       Here, the record supports the IJ’s partial adverse

12   credibility based on inconsistencies between Sherpa’s asylum

13   application and his testimony.     Specifically, the IJ

14   reasonably found that: (1) Sherpa omitted significant events

15   from his asylum application that he relied on in his

16   testimony; and (2) Sherpa testified that he received a

17   threatening letter in a different month than in his asylum

18   application.   Sherpa’s explanations for these

19   inconsistencies, that he omitted information from his

20   original asylum application because he prepared it himself

21   and gave inconsistent dates because he made an error in

22   converting months from the Nepali calendar, do not compel a



                                    3
1    different conclusion.   See Majidi v. Gonzales, 430 F.3d 77,

2    80-81 (2d Cir. 2005).   Sherpa’s asylum application provided

3    a very detailed statement of facts, such that the IJ was

4    warranted to find that his failure to mention a kidnapping

5    attempt and a threatening letter is not explained by his

6    contention that he made a mistake.    And the IJ could

7    reasonably conclude that Sherpa’s account of an error in

8    converting the Nepali calendar into western dates is belied

9    by the fact that the Nepali date he gave to this Court to

10   explain the error is also inconsistent with the Nepali date

11   provided in his asylum application.

12   II.   Asylum, Withholding of Removal, and CAT Relief

13         In this case, the IJ erred in concluding that the

14   incidents of harm that Sherpa suffered considered

15   cumulatively did not rise to the level of persecution.

16   Physical violence against an individual may constitute

17   persecution because “violent conduct generally goes beyond

18   the mere annoyance and distress that characterize

19   harassment.”   Ivanishvili v. U.S. Dep't of Justice, 433 F.3d

20   332, 342 (2d Cir. 2006).   The IJ must consider “the context

21   in which [] mistreatment occurs” when determining whether an

22   applicant has suffered persecution.    Beskovic v. Gonzales,


                                   4
1    467 F.3d 223, 226 (2d Cir. 2006).    Sherpa testified to

2    suffering a minor beating at the hands of Maoist rebels.

3    This beating took place in a context of repeated death

4    threats, an attack on his home, and an attack on his family

5    members, which caused him to flee his home for Kathmandu.

6    See id.; Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.

7    2007) (“[I]f an applicant’s family member was harmed as a

8    means of targeting the applicant on some protected ground,

9    that harm may constitute persecution of the applicant”

10   (emphasis in original)).    Based on these facts, we conclude

11   that, as a matter of law, the harm Sherpa suffered rose to

12   the level of persecution.    See Beskovic, 467 F.3d at 226;

13   Ivanishvili, 433 F.3d at 341.

14       However, it would be futile to remand to the agency

15   because, in considering whether Sherpa established a well-

16   founded fear of persecution, the IJ reasonably determined

17   that Sherpa had safely relocated to another city in Nepal.

18   See Xiao Ji Chen v. U.S. Dept. Of Justice, 471 F.3d 315, 338

19   (2d Cir. 2006); see also 8 C.F.R. § 1208.13(b)(2)(ii),

20   (b)(3).   When an applicant has established past persecution,

21   the regulations provide that there is a rebuttable

22   presumption that he has a well-founded fear of future


                                     5
1    persecution.   8 C.F.R. § 1208.13(b)(1).    Nevertheless, an IJ

2    must deny an application for asylum if the government rebuts

3    the presumption of a well-founded fear of persecution with a

4    demonstration by a preponderance of the evidence that “[t]he

5    applicant could avoid future persecution by relocating to

6    another part of [his] country of nationality . . . and under

7    all the circumstances, it would be reasonable to expect

8    [him] to do so.”   8 C.F.R. § 1208.13(b)(1)(i)(B).    In

9    determining whether the presumption of a well-founded fear

10   has been rebutted by the applicant’s ability to relocate,

11   the agency’s regulations provide that the IJ should evaluate

12   the reasonableness of internal relocation by considering,

13   inter alia, “whether the applicant would face other serious

14   harm in the place of suggested relocation; any ongoing civil

15   strife within the country; administrative, economic, or

16   judicial infrastructure; geographical limitations; and

17   social and cultural constraints, such as age, gender,

18   health, and social and familial ties.”     8 C.F.R. § 1208.13

19   (b)(3).   In this case, remand would be futile because the

20   Court can “state with confidence” that the IJ would find any

21   presumption of a well-founded fear of persecution rebutted

22   when, in analyzing whether Sherpa had established a



                                   6
1    well-founded fear of persecution, the IJ considered the

2    reasonableness factors listed in the regulations and

3    reasonably found that Sherpa had safely relocated to

4    Kathmandu in 2001 and had lived there with his family

5    unharmed until 2006.    See Xiao Ji Chen, 471 F.3d at 338; see

6    also 8 C.F.R. § 1208.13(b)(3).

7        Substantial evidence supports the agency’s conclusion

8    that Sherpa failed to establish a well-founded fear of

9    future persecution.    In denying Sherpa’s application for

10   asylum, the IJ found that while Sherpa had received threats

11   from Maoist rebels at least six years before his hearing,

12   those threats did not show that he had a well-founded fear

13   of future persecution, considering that he had safely

14   relocated to Kathmandu, where he lived for nearly five years

15   and where his wife and children continued to live unharmed.

16   See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

17   1999); 8 C.F.R. § 1208.13(b)(3).       Additionally, the IJ

18   reasonably relied on country reports in the record to find

19   that the cease-fire in Nepal suggested that Sherpa was in

20   less danger of persecution at the hands of the Maoists than

21   he was before the cease-fire.       See Lecaj v. Holder, 616 F.3d

22   111, 115-16 (2d Cir. 2010).     Accordingly, because the IJ


                                     7
1    reasonably evaluated the factors provided in the regulations

2    – safety of relocation, civil strife, and family ties – in

3    determining that Sherpa could safely relocate within Nepal,

4    and, indeed, had relocated, the IJ did not err in concluding

5    that he did not have a well-founded fear of future

6    persecution.   See 8 C.F.R. § 1208.13(b)(2)(ii) & (b)(3).

7        Finally, because Sherpa’s claims for withholding of

8    removal and CAT relief were based on the same factual

9    predicate as his claim for asylum, the agency did not err in

10   denying those forms of relief.      See Paul v. Gonzales, 444

11   F.3d 148, 156 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

15   is VACATED, and any pending motion for a stay of removal in

16   this petition is DISMISSED as moot.      Any pending request for

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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