SHERPA v. BARR (2019)

SUMMARY ORDER

Petitioner Sange Sherpa, a native and citizen of Nepal, seeks review of a January 30, 2018, decision of the BIA affirming a February 28, 2017, decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sange Sherpa, No. A202 078 593 (B.I.A. Jan. 30, 2018), aff’g No. A202 078 593 (Immig. Ct. N.Y. City Feb. 28, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances, we have considered both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); 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 applicant’s or witness’s written and oral statements ․, the internal consistency of each such statement, 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 applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008). Substantial evidence supports the agency’s determination that Sherpa was not credible as to his claim that Maoists attacked him in Nepal on account of his membership in the Nepal Student Union.

The agency reasonably relied on Sherpa’s inconsistent evidence regarding whether he was attacked in October or November 2013; when he was attacked in relation to his departure from Nepal; whether he was injured during the first or second of two incidents; and when and how he obtained his corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). Sherpa did not provide compelling explanations for these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks omitted)).

Given the inconsistency findings, the agency’s adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). 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.