17-2060 Sherpa v. Barr BIA Nelson, IJ A205 643 974 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 11th day of April, two thousand nineteen.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

PEMA SHERPA, Petitioner,

v. 17-2060 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Stuart Altman, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Derek C. Julius, Assistant Director; Anthony O. Pottinger, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 GRANTED.

Petitioner Pema Sherpa, a native and citizen of Nepal,

seeks review of a June 16, 2017, decision of the BIA affirming

a November 30, 2016, 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 Pema Sherpa, No. A 205 643 974 (B.I.A. June 16,

2017), aff’g No. A 205 643 974 (Immig. Ct. N.Y. City Nov. 30,

2016). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

Because the BIA adopted the IJ’s adverse credibility

determination, without addressing any of the IJ’s other

findings, we review both the IJ’s and BIA’s decisions but

only as to credibility. See Wangchuck v. Dep’t of Homeland

Sec.,

(2d Cir. 2006). We review adverse

credibility determinations under the substantial evidence

standard. Hong Fei Gao v. Sessions,

(2d Cir.

2018).

The governing REAL ID Act credibility standard provides

that the agency must “[c]onsider[] the totality of the 2 circumstances” and may consider inconsistencies between an

applicant’s written and oral statements or between her

statements and other evidence.

(b)(1)(B)(iii).

Although the agency may rely on non-material omissions as

well as inconsistencies in making credibility determinations,

Xiu Xia Lin v. Mukasey,

(2d Cir. 2008),

“not all omissions and inconsistencies . . . deserve the same

weight,” Hong Fei Gao,

. The agency must

“distinguish between (1) omissions that arise merely because

an applicant’s oral testimony is more detailed than his or

her written application, and (2) omissions that tend to show

that an applicant has fabricated his or her claim.”

. Because the omissions in this case are similar to those

at issue in Hong Fei Gao, we remand for the agency to

reconsider the adverse credibility determination and for the

BIA to address the IJ’s alternative findings.

Sherpa’s application and testimony describe a 2008 attack

by the Maoists while she was campaigning for the Nepali

Congress Party and a 2011 attack by six members the Maoist-

affiliated Young Communist League (“YCL”) who came to

Sherpa’s house and beat Sherpa and her father. The agency’s

adverse credibility ruling relied primarily on an omission

from her application of an injury that Sherpa sustained to 3 her arm when she fell during the 2011 attack. But Sherpa’s

asylum application and testimony gave largely consistent

descriptions of the 2011 incident. Moreover, the omitted

injury was caused by her fall rather than a blow from her

attackers, and she did not seek any medical treatment.

As in Hong Fei Gao, the agency placed too much weight on

Sherpa’s omission of her injury. Sherpa’s testimony regarding

the injury to her arm “was supplementary, not contradictory,”

. Similarly, Sherpa’s father’s omission of the injury

does not contradict Sherpa’s statements.

(“[W]here

a third party’s omission creates no inconsistency with the

applicant’s own statements[,] an applicant’s failure to

explain third party omissions is less probative than an

applicant’s failure to explain his or her own omissions.”).

Moreover, because the omission of the injury was not

obvious, the IJ was required to confront Sherpa about the

omissions in her application and her father’s letter before

relying on them as the primary basis for an adverse

credibility ruling. See Ming Shi Xue v. BIA,

(2d Cir. 2006) (explaining that where inconsistencies

“are not plainly obvious,” the agency may not rely on them

without first “identifying the alleged inconsistencies for

4 the applicant and giving the applicant an opportunity to

address them”).

The IJ’s remaining findings do not provide substantial

evidence for the adverse credibility determination because

they reflect the same deficiencies. The IJ found that Sherpa’s

application omitted the date of the first attack. However,

Sherpa’s testimony that the attack occurred in February 2008

is consistent with the timeframe of her application, which

stated that the attack took place while she was campaigning

for the Nepali Congress Party before an election and before

she left for a temporary job in Israel. Additionally, Sherpa’s

testimony describing the attack was consistent with her

application except that she described being “beaten” rather

than “kicked.” Sherpa was not confronted about this perceived

inconsistency. See

Apart from the omissions, Sherpa provided a detailed

written statement and testimony consistent with her

application regarding the events in 2008 and 2011 that caused

her to leave Nepal. Accordingly, we remand for the agency to

reconsider its adverse credibility ruling under the clarified

standard set forth in Hong Fei Gao. On remand, the BIA may

also review in the first instance the IJ’s alternative

findings regarding the severity of the past harm, changed 5 conditions in Nepal, and the possibility of internal

relocation.

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings consistent with this order.

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 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 of Court

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