         11-3832                                                                       BIA
         Sherpa v. Holder                                                          Hom, IJ
                                                                               A099 697 129



                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       PEMA CHHEWANG SHERPA,
14                Petitioner,
15
16                          v.                                  11-3832
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Khagendra Gharti-Chhetry, New York,
24                                     N.Y.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Douglas E.
28                                     Ginsburg, Assistant Director; Deitz
29                                     P. Lefort, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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       Pema Chhewang Sherpa, a native and citizen of Nepal,

 6   seeks review of an August 24, 2011, decision of the BIA

 7   affirming the November 2, 2009, decision of Immigration

 8   Judge (“IJ”) Sandy K. Hom, which denied his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Pema Chhewang

11   Sherpa, No. A099 697 129 (B.I.A. Aug. 24, 2011), aff’g No.

12   A099 697 129 (Immig. Ct. N.Y. City Nov. 2, 2009).    We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have

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

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

18   (2d Cir. 2008) (citation omitted).    The applicable standards

19   of review are well-established.     See 8 U.S.C.

20   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

21   510, 513 (2d Cir. 2009).

22



                                     2
 1       For asylum applications such as Sherpa’s, governed by

 2   the amendments made to the Immigration and Nationality Act

 3   by the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   any inconsistencies or omissions in the applicant’s

 6   statements, without regard to whether the inconsistencies or

 7   omissions go “to the heart of the applicant’s claim.”   See 8

 8   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

 9   F.3d 162, 167 (2d Cir. 2008) (per curiam).

10       The agency found that Sherpa’s testimony was incredible

11   because his original asylum application filed in May 2006

12   and his amended application filed in July 2006 were

13   inconsistent with his testimony during his merits hearing

14   regarding alleged attacks by Maoists in 2002, 2003 and 2004.

15   Sherpa acknowledges the inconsistencies but argues that the

16   adverse credibility determination overly relied on the minor

17   discrepancies.   However, the BIA reasonably found no clear

18   error in the IJ’s adverse credibility determination based on

19   the omissions and inconsistencies.   See Xiu Xia Lin, 534

20   F.3d at 167.

21       Sherpa also argues that he was not legally responsible

22   for his May and July 2006 applications because he “did not


                                   3
 1   understand the contents of the documents he signed.”

 2   However, as the IJ noted, Sherpa’s signature on his

 3   applications established a presumption that he was aware of

 4   the contents of the applications.   See 8 C.F.R.

 5   § 1208.3(c)(2).   Sherpa attempts to overcome this

 6   presumption by explaining that the inconsistencies in his

 7   first two asylum applications were “mistakes” caused by

 8   “confusion” with his former attorney regarding when or

 9   whether to file the applications.   However, the agency

10   reasonably rejected this explanation because it contradicted

11   Sherpa’s testimony that he provided “examples” of his

12   interaction with the Maoists to a third party at his prior

13   attorney’s office who used his examples and “made up” false

14   information for his asylum applications.     See Majidi v.

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

16   the agency need not credit an applicant’s explanations for

17   inconsistent testimony unless those explanations would

18   compel a reasonable fact-finder to do so).

19       To the extent Sherpa argues that he is entitled to

20   withholding of removal and CAT relief independent from his

21   incredible testimony based on the background materials

22   submitted with his applications, Sherpa does not identify


                                   4
 1   any specific record evidence indicating that he will be

 2   singled out for harm on account of a protected ground, or

 3   for any other reason thus, his generalized assertion of a

 4   fear of future harm is merely speculative and inadequate to

 5   meet his burden of proof.     Jian Xing Huang v. INS, 421 F.3d

 6   125, 129 (2d Cir. 2005) (per curiam) (absent “solid support”

 7   in the record that his fear is objectively reasonable, a

 8   petitioner’s claim is “speculative at best”).

 9       Therefore, because the totality of the circumstances

10   supports the agency’s adverse credibility determination, we

11   defer to that finding.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

12   Xiu Xia Lin, 534 F.3d at 167.       As the only evidence of a

13   threat to Sherpa’s life or freedom depended upon his

14   credibility, the adverse credibility determination in this

15   case is dispositive of his claims for asylum, withholding of

16   removal, and CAT relief.     See Paul v. Gonzales, 444 F.3d

17   148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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

23   this petition is DISMISSED as moot. Any pending request for
                                     5
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk




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