         08-4712-ag
         Sherpa v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A095 841 645
                             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 26 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                ROGER J. MINER,
10                DEBRA ANN LIVINGSTON,
11                        Circuit Judges.
12       _______________________________________
13       PASANG SHERPA, ALSO KNOWN AS
14       ANG BAWA SHERPA,
15                Petitioner,
16
17                          v.                                  08-4712-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, * UNITED STATES
21       DEPARTMENT OF JUSTICE,
22                Respondents.
23       _______________________________________
24       FOR PETITIONER:         Khagendra Gharti-Chhetry, New York,
25                               New York.
26




                       *
                    Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
1    FOR RESPONDENTS:        Michael F. Hertz, Acting Assistant
2                            Attorney General; Terri J. Scadron,
3                            Assistant Director; Greg D. Mack,
4                            Trial Attorney, Office of
5                            Immigration Litigation, United
6                            States Department of Justice,
7                            Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

12   review is GRANTED.

13       Petitioner Pasang Sherpa, a native and citizen of

14   Nepal, seeks review of an August 27, 2008 order of the BIA

15   reversing the April 18, 2006 decision of Immigration Judge

16   (“IJ”) Noel A. Brennan, granting his application for asylum.

17   In re Pasang Sherpa, No. A095 841 645 (B.I.A. Aug. 27,

18   2008), rev’g No. A095 841 645 (Immig. Ct. N.Y. City Apr. 18,

19   2006).   We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       When the BIA does not adopt the decision of the IJ to

22   any extent, we review only the decision of the BIA.     See Yan

23   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We

24   review the agency’s factual findings under the substantial

25   evidence standard.   8 U.S.C. § 1252(b)(4)(B); see Corovic v.

26   Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).   Questions of law



                                   2
1    and the application of law to undisputed fact are reviewed

2    de novo.   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

3    Cir. 2008).

4        Sherpa argues that the BIA erred in finding clearly

5    erroneous the IJ’s determination that he testified credibly.

6    The BIA may overturn an IJ’s factual findings only if those

7    findings are “clearly erroneous.”    See 8 C.F.R.

8    §§ 1003.1(d)(3)(i), 1003.3(f); see also In re S-H-, 23 I. &

9    N. Dec. 462, 466 (B.I.A. 2002) (“Under the new regulatory

10   provisions, the Board will not engage in de novo review of

11   findings of fact determined by an Immigration Judge in any

12   case in which the appeal is filed on or after September 25,

13   2002.”).   The BIA may not substitute its judgment for the

14   IJ’s when reviewing the IJ’s findings.     See Fen Yong Chen v.

15   BCIS, 470 F.3d 509, 514 (2d Cir. 2006).     The BIA may not

16   reject a factual finding simply because it would have

17   weighed the evidence differently or decided the facts

18   differently had it been the factfinder.     See Matter of R-S-

19   H-, 23 I. & N. Dec. 629, 637 (BIA 2003).     A factual finding

20   is “clearly erroneous” only if the reviewing body is left

21   with the “definite and firm conviction that a mistake has

22   been committed.”   See id.   If an IJ’s finding that an


                                    3
1    applicant is credible is rejected on the basis of the BIA’s

2    own independent analysis of the applicant’s credibility,

3    then the BIA has conducted an impermissible de novo review.

4    See Fen Yong Chen, 470 F.3d at 514.

5        In this case, the BIA recited the “clearly erroneous”

6    standard, but it did not explain how the IJ erred or even

7    clearly specify which of the findings were erroneous.          See

8    id. Rather, the BIA conducted its own de novo review of the

9    record and reached its own credibility determination,

10   without directly addressing the IJ’s findings or analysis.

11   See id.

12       In overturning the IJ’s credibility finding, the BIA

13   emphasized Sherpa’s omission of the kidnapping from his

14   asylum application, but did not address to any extent the

15   IJ’s lengthy discussion of this omission or her analysis of

16   Sherpa’s explanations for it.       The BIA concluded that

17   Sherpa’s explanations were inadequate, but it did not

18   refute, or even acknowledge, the IJ’s reasons for crediting

19   those explanations.   See id. (“The BIA’s substitution of its

20   judgment for the IJ’s is classic de novo review.”).          While

21   the IJ’s analysis of Sherpa’s omission of the kidnapping may

22   have been flawed, the BIA never explained why it was flawed.

23   See id.
                                     4
1        The BIA also cited certain inconsistencies in the

2    record as grounds for finding Sherpa not credible and for

3    deeming the IJ’s positive credibility determination clearly

4    erroneous.   The IJ found that, despite his vagueness about

5    dates, Sherpa had testified consistently that the kidnapping

6    had taken place in the general time period of July to August

7    2001 and that he had received one letter from the Maoists a

8    few weeks before the kidnapping and the other letter a few

9    weeks afterward.   The BIA did not discuss these findings, or

10   her impression that the drinking problem for which Sherpa

11   was receiving treatment could explain the “fuzziness” of

12   some of his testimony, especially with respect to dates.

13   See id.

14       The BIA also cited a discrepancy in the record

15   regarding whether the Maoists began coming to Sherpa’s home

16   in 1996 or in 2000.   However, since the IJ made no mention

17   of this discrepancy (raised at one point during Sherpa’s

18   lengthy merits hearing), the BIA was improperly engaging in

19   independent fact-finding based on a de novo review of the

20   record, see 8 C.F.R. § 1003.1(d)(3); see also Fen Yong Chen,

21   470 F.3d at 514, thereby substituting its own judgment for

22   that of the IJ see 8 C.F.R. § 1003.1(d)(3)(i)-(iv).

23   Accordingly, we grant the petition with respect to Sherpa’s
                                  5
1    challenge to the BIA’s determination that Sherpa had not

2    demonstrated his eligibility for asylum or withholding of

3    removal because he was not credible.

4        Sherpa additionally asserts that the BIA insufficiently

5    considered his CAT claim.   Although Sherpa applied for CAT

6    relief, neither the IJ nor the BIA has, as of yet, reached

7    the merits of that application.   Accordingly, the agency may

8    wish to consider this claim on remand.

9        For the foregoing reasons, the petition for review is

10   GRANTED, and the case is remanded to the agency for further

11   proceedings consistent with this order.   As we have

12   completed our review, any stay of removal that the Court

13   previously granted in this petition is VACATED, and any

14   pending motion for a stay of removal in this petition is

15   DISMISSED as moot. Any pending request for oral argument in

16   this petition is DENIED in accordance with Federal Rule of

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

18   34(b).

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22
23




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