17-3933 Sherpa v. Barr BIA Laforest, IJ A206 310 467

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 17th day of September, two thousand nineteen.

PRESENT: JON O. NEWMAN, PETER W. HALL, MICHAEL H. PARK, Circuit Judges. _____________________________________

TASNI SHERPA, AKA TASSI SHERPA, AKA TASI SHERPA, Petitioner,

v. 17-3933 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chherty, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Enitan O. Otunla, 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 DENIED.

Petitioner Tasni Sherpa (“Sherpa”), a native and citizen

of Nepal, seeks review of a November 14, 2017, decision of

the BIA affirming a March 6, 2017, 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 Tasni Sherpa, No. A 206 310

467 (B.I.A. Nov. 14, 2017), aff’g No. A 206 310 467 (Immig.

Ct. N.Y. City Mar. 6, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed both the BIA’s and IJ’s decisions “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland

Sec.,

(2d Cir. 2006). We review the agency’s

adverse credibility determination for substantial evidence.

2 See

(b)(4)(B); Hong Fei Gao v. Sessions,

(2d Cir. 2018). “Considering the totality of the

circumstances, and all relevant factors, a trier of fact may

base a credibility determination on demeanor . . ., the

inherent plausibility of the applicant’s . . . account, the

consistency between the applicant’s . . . written and oral

statements . . . , the internal consistency of each such

statement, [and] the consistency of such statements with

other evidence of record . . . .”

(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence supports the agency’s

determination that Sherpa was not credible as to her claim

that Maoists threatened and beat her in Nepal on account of

her affiliation with the Nepali Congress Party (“NCP”).

The agency reasonably found Sherpa’s testimony evasive

and unresponsive when asked to deviate from information and

dates provided in her asylum application, which gave the 3 impression that she was testifying from a script. See

(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of

Justice,

(2d Cir. 2006) (recognizing that

particular deference is given to the trier of fact’s

assessment of demeanor and finding it reasonable for an IJ to

base an adverse credibility determination on a finding “that

the applicant is testifying from a script rather than from

experience”). The IJ’s observations are supported by the

record, which reveals that Sherpa repeatedly avoided

answering questions regarding how many times Maoists came to

her house and could recall that she fled to Kathmandu in 2002,

which was a date provided in her application, but could not

recall that Maoists began coming to her house that same year,

a date not provided in her application.

The demeanor finding and the overall credibility

determination are bolstered by record inconsistencies. See

Li Hua Lin v. U.S. Dep’t of Justice,

(2d

Cir. 2006). Sherpa omitted from her credible fear interview

her claim that she was assaulted by Maoists for her support

of the NCP. The agency properly relied on this omission

because it was the sole persecutory event that Sherpa alleged 4 and is a fact that “a credible petitioner would reasonably

have been expected to disclose,” particularly given that she

was asked if she had been harmed by Maoists. Hong Fei Gao,

; see Ming Shi Xue v. BIA,

(2d Cir. 2006) (providing that the agency may rely on

“inconsistencies that are ‘dramatic’—that is, sufficiently

conspicuous and central to the applicant’s claim as to be

self-evident” without soliciting an explanation). Sherpa’s

challenge to the reliability of the interview record are

unexhausted and therefore not properly before us. See Lin

Zhong v. U.S. Dep’t of Justice,

(2d

Cir. 2007) (holding that issue exhaustion is mandatory and

noting that the Court “may consider only those issues that

formed the basis for [the BIA’s] decision”). We note, however,

that the record of the interview bears “sufficient indicia of

reliability to warrant its consideration by the agency.” Ming

Zhang v. Holder,

(2d Cir. 2009). And we do

not require the agency to engage in “talismanic references”

to the “close examination” of an interview.

.

Second, the agency reasonably found Sherpa’s affidavit

and hearing testimony inconsistent with her credible fear 5 interview, during which she stated that she was never

personally threatened by Maoists. See

Relatedly, Sherpa

made internally inconsistent statements at her interview,

which subsequently contradicted her testimony, about whether

the Maoists merely knew of her whereabouts, were actively

searching for her, or actually found her in Kathmandu. See

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

Third, Sherpa asserted that she was not a member of the

NCP but then produced a card that stated she was an active

member of the party. See

Sherpa did not compellingly

explain this inconsistency. See Majidi v. Gonzales,

(2d Cir. 2005) (“A petitioner must do more than offer

a plausible explanation for . . . inconsistent statements to

secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotations omitted)).

Given Sherpa’s demeanor and the multiple record

inconsistencies, substantial evidence supports the agency’s

adverse credibility determination. See

(b)(1)(B)(iii); Xiu Xia Lin,

. That

determination was dispositive of asylum, withholding of 6 removal, and CAT relief because all three claims were based

on the same factual predicate. See Paul v. Gonzales,

(2d Cir. 2006).

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

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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