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SHERPA v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-04-22No. 19-1323 NAC

Summary

Holding. The petition for review is denied. The Board of Immigration Appeals' adverse credibility determination was supported by substantial evidence, including material inconsistencies in Sherpa's statements about physical harm and her failure to provide credible corroborating evidence, and this determination was dispositive of all three forms of relief sought.

Yanglamu Sherpa, a Nepali citizen, petitioned for review of an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture protection. The Board of Immigration Appeals had upheld the denial based on an adverse credibility finding. The court focused on whether the agency's credibility determination was supported by substantial evidence.

The court found that Sherpa's statements were materially inconsistent between her credible fear interview and her hearing testimony regarding whether Maoists physically harmed her because of her membership in the Nepal Women's Association. These inconsistencies concerned the most recent alleged persecution and were central to establishing her asylum claim. The court also determined that Sherpa failed to rehabilitate her testimony with reliable corroborating evidence—family letters were inadmissible due to lack of cross-examination opportunity, and medical records prepared years after the alleged harm and partly based on information from her father were appropriately discounted.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether material inconsistencies in an applicant's statements between credible fear interview and hearing testimony support an adverse credibility determination
  • Whether an applicant's failure to corroborate testimony with reliable evidence bears on credibility
  • Whether family letters and delayed medical documentation constitute sufficient corroboration for asylum claims

Procedural posture

Sherpa sought judicial review of the Board of Immigration Appeals' affirmance of an immigration judge's denial of asylum, withholding of removal, and CAT protection.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Yanglamu Sherpa, a native and citizen of Nepal, seeks review of an April 16, 2019 decision of the BIA, affirming a February 2, 2018 decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Yanglamu Sherpa, No. A XXX XX6 195 (B.I.A. Apr. 16, 2019), affg No. A XXX XX6 195 (Immigr. Ct. N.Y.C. Feb. 2, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJs decision as modified by the BIA and reach only the adverse credibility determination on which the BIA relied. See Xue Hong Yang v. U.S. Dept of Just., 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

“Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on ․ the consistency between the applicants or witnesss written and oral statements ․, the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record ․ without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim․” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer ․ to an IJs 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, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam); accord Hong Fei Gao, 891 F.3d at 76. Here, substantial evidence supports the agencys determination that Sherpa was not credible as to her claim that Maoists attacked her on account of her membership in the Nepal Womens Association.

Sherpas challenge to the reliability of the record of her credible fear interview is unexhausted. See Lin Zhong v. U.S. Dept of Just., 480 F.3d 104, 107, 122-24 (2d Cir. 2007) (holding that issue exhaustion generally is mandatory). In any event, we conclude that the interview record “bears sufficient indicia of reliability to warrant its consideration by the agency” given that it is memorialized in a typed list of questions and answers, includes questions designed to elicit an asylum claim, and was conducted through a Nepali interpreter. Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).

The agency thus reasonably relied on inconsistencies between Sherpas statements at her credible fear interview and her hearing testimony regarding whether Maoists ever physically harmed her on account of her participation in the womens organization. The inconsistencies about whether and why she was physically harmed provide substantial evidence for the adverse credibility determination because they relate to the most recent allegation of persecution, the sole incident of physical harm, and whether the harm was on account of a protected ground as required to state a claim for asylum and withholding of removal. See Xian Tuan Ye v. Dept of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam) (holding that “a material inconsistency in an aspect of [an applicants] story that served as an example of the very persecution from which [s]he sought asylum ․ afforded substantial evidence to support the adverse credibility finding.”) (internal quotation marks and citation omitted). The agency was not compelled to accept Sherpas explanation that she was nervous and wanted to forget past events. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for h[er] inconsistent statements to secure relief; [s]he must demonstrate that a reasonable fact-finder would be compelled to credit h[er] testimony.”) (internal quotation marks and citation omitted).

Having questioned Sherpas credibility, the agency reasonably relied further on her failure to rehabilitate her testimony with reliable corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam) (“An applicants failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.”). The agency reasonably declined to credit letters from Sherpas friends and family in Nepal because the authors were not available for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters from friends and family insufficient to provide substantial support for claims because they were from interested witnesses not subject to cross-examination), abrogated on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). Nor did the agency err in declining to credit medical documentation prepared three years after the alleged treatment and based, in part, on information provided by Sherpas father. See Y.C., 741 F.3d at 332; Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008).

Given the agencys corroboration findings and the inconsistencies in Sherpas statements, the agencys adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find h[er] credible. Multiple inconsistencies would so preclude even more forcefully.”). That determination was dispositive of asylum, withholding of removal, and CAT relief because all three claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.