    14-2524
    Sherpa v. Lynch
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A087 646 994
                           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.

          At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    20th day of November, two thousand fifteen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    LAKPA SONAM SHERPA,
             Petitioner,

                      v.                                             14-2524
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Michael Lehach, Lehach & Filippa,
                                         LLP, New York, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Acting Assistant
                                         Attorney General; John S. Hogan,
                                         Assistant Director; Todd Cochran,
                           Trial Attorney, Office of
                           Immigration Litigation, United
                           States Department of Justice,
                           Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Lakpa Sonam Sherpa, a native and citizen of

Nepal, seeks review of a July 2, 2014, decision of the BIA

affirming an August 26, 2013, decision of an Immigration Judge

(“IJ”) denying Sherpa’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).   In re Lakpa Sonam Sherpa, No. A087 646 994 (B.I.A.

July 2, 2014), aff’g No. A087 646 994 (Immig. Ct. N.Y. City Aug.

26, 2013).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA.   See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).          The

applicable standards of review are well established.         See

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

                               2
165-66 (2d Cir. 2008) (per curiam).         For asylum applications

like Sherpa’s, governed by the REAL ID Act, the agency may,

“[c]onsidering the totality of the circumstances . . . base a

credibility   determination     on    the   demeanor,   candor,   or

responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account,” and

inconsistencies in an applicant’s statements and other record

evidence “without regard to whether” they go “to the heart of

the applicant’s claim.”      8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia Lin, 534 F.3d at 163-64.         The IJ’s adverse credibility

determination is supported by substantial evidence.

    Sherpa claimed that he was beaten and threatened by members

of the Nepalese Maoist party when he refused to join and instead

joined the Congress Party.    Sherpa testified that he was beaten

by Maoists in 2003, but his asylum application made no mention

of the beating.   Sherpa explained that the person who prepared

his application must have forgotten to include the incident.

This inconsistency is supported by the record.      See Xiu Xia Lin,

534 F.3d at 163-64, 166.     Moreover, the IJ was not required to

credit Sherpa’s explanation for it.         Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005).
                                 3
    In     addition,    the   IJ    reasonably     relied    on   other

discrepancies in the record.        Sherpa testified that he had two

encounters with Maoists in June 2003, but he later stated that

he had three such encounters.           Sherpa also testified that he

did not report any of his contacts with Maoists to police after

November 2004, but the record contains a complaint filed in

September 2005.     Sherpa stated that Maoists threatened his

father and demanded one million rupees from him in July of 2009;

however, while Sherpa’s father’s letter does mention a demand

for one million rupees, it does not say he was threatened by

Maoists.    Finally, Sherpa was asked whether his father still

lived in Sherpa’s childhood home, and he said that he did; he

immediately changed his answer, however, stating that his

father lived in the same village.         The IJ reasoned that Sherpa

changed his answer because he had written in his application

that Maoists had burned his family’s home.                  The IJ was

entitled    to   rely   on    the    cumulative    effect    of   these

discrepancies.    Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.

2006).

    Finally, the IJ relied on his observations of Sherpa’s

demeanor in finding him not credible.             We generally afford
                                    4
particular deference to an IJ’s assessment of an applicant’s

demeanor, especially when those observations are bolstered by

specific inconsistencies in the record.          Jin Chen v. U.S. Dep’t

of Justice, 426 F.3d 104, 113 (2d Cir. 2005); Li Hua Lin v. U.S.

Dep't of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

      Considering the inconsistencies in the record, as well as

the   IJ’s    demeanor   finding,   the   IJ’s   adverse   credibility

determination is supported by substantial evidence.           8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66.                 This

finding was sufficient to deny asylum, withholding of removal,

and CAT relief, as all three claims were based on the same

factual predicate.       Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

Cir. 2006) (withholding); Xue Hong Yang v. U.S. Dep’t of

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

we decline to reach Sherpa’s challenge to the IJ’s pretermission

of his asylum application as untimely.

      For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.       Any pending request for oral argument
                                    5
in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                            FOR THE COURT:
                            Catherine O=Hagan Wolfe, Clerk




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