     14-234
     Sherpa v. Holder
                                                                                BIA
                                                                           Wright, IJ
                                                                        A201 120 105
                             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
TO 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 Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 12th day of March, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   KALJANG SHERPA,
14            Petitioner,
15
16                      v.                               14-234
17                                                       NAC
18   ERIC H. HOLDER, JR., UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Jason A. Nielson, Mungoven &
24                                    Associates, New York, New York.
25
26   FOR RESPONDENT:                  Joyce R. Branda, Acting Assistant
27                                    Attorney General; Douglas E.
28                                    Ginsburg, Assistant Director; Deitz
29                                    P. Lefort, Trial Attorney, Office of
 1                                    Immigration Litigation, United
 2                                    States Department of Justice,
 3                                    Washington D.C.
 4
 5         UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9         Kaljang Sherpa, a native and citizen of Nepal, seeks

10   review    of    a    December       30,     2013,      decision     of    the     BIA,

11   affirming the December 12, 2012, decision of an Immigration

12   Judge    (“IJ”),         which   denied     his       application      for   asylum,

13   withholding         of     removal,       and     relief    pursuant         to    the

14   Convention Against Torture (“CAT”).                     In re Kaljang Sherpa,

15   No. A201 120 105 (B.I.A. Dec. 30, 2013), aff’g No. A201 120

16   105   (Immig.       Ct.    N.Y.C.    Dec.       12,   2012).      We     assume   the

17   parties’       familiarity          with     the       underlying        facts    and

18   procedural history in this case.

19         Under the circumstances of this case, we have reviewed

20   the IJ’s decision as modified by the BIA.                      See Xue Hong Yang

21   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

22   The applicable standards of review are well established.

23   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

24   510, 513 (2d Cir. 2009).
 1        For asylum applications like Sherpa’s, governed by the

 2   REAL ID Act of 2005, the agency may, “[c]onsidering the

 3   totality   of     the    circumstances,”          base    a   credibility

 4   determination on inconsistencies in an asylum applicant’s

 5   statements and other record evidence, “without regard to

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

 7   U.S.C. § 1158(b)(1)(B)(iii).             “We 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 an adverse credibility ruling.”               Xiu Xia Lin

11   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

12   Substantial      evidence     supports          the    agency’s    adverse

13   credibility determination.

14        The   agency      reasonably       found    inconsistent     Sherpa’s

15   initial testimony that, after he left Nepal, his wife lived

16   in   Kathmandu   and    did   not   receive      any   threats    from   the

17   Maoists, his later testimony that she actually lived in

18   Solukhumbu and did receive threats from the Maoists, and his

19   witness’s statement that Sherpa’s wife lived in both places.

20   While these inconsistencies formed the crux of the agency’s

21   adverse credibility determination, it also reasonably relied
                                         3
1    on an inconsistency regarding the number of interactions

2    Sherpa and his family had with Maoists when Sherpa was in

 3   Nepal.    See Xiu Xia Lin, 534 F.3d at 166-67 & n.3.             Sherpa

 4   did    not   provide     compelling         explanations   for   these

5    inconsistencies.      See Majidi v. Gonzales, 430 F.3d 77, 80-81

6    (2d Cir. 2005) (holding that the agency need not credit an

7    applicant’s explanations for inconsistent testimony unless

 8   those explanations would compel a reasonable fact-finder to

 9   do so).

10         Given these inconsistency findings, the totality of the

11   circumstances    supports    the     agency’s    adverse   credibility

12   determination.     See Xiu Xia Lin, 534 F.3d at 167.                 That

13   determination    is    dispositive     of    asylum,   withholding    of

14   removal, and CAT relief as those claims are based on the

15   same factual predicate.       Paul v. Gonzales, 444 F.3d 148,

16   156-57 (2d Cir. 2006).

17

18

19

20

21

22


                                        4
1       For the foregoing reasons, the petition for review is

2   DENIED.    As we have completed our review, Sherpa’s pending

3   motion for a stay of removal in this petition is DISMISSED

4   as moot.

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




                                  5
