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Geljen Sherpa v. Eric H. Holder

January 21, 2011

GELJEN SHERPA, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL RESPONDENT.



BIA Balasquide, IJ A099 928 380

Sherpa v. Holder

SUMMARY ORDER

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 21st day of January, two thousand eleven.

PRESENT:

DENNIS JACOBS, Chief Judge, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges.

NAC

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 Geljen Sherpa, a native and citizen of Nepal, seeks review of a June 19, 2009, order of the BIA affirming the September 20, 2007, decision of Immigration Judge ("IJ") Javier Balasquide denying Sherpa's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Geljen Sherpa, No. A099 928 380 (B.I.A. June 19, 2009), aff'g No. A099 928 380 (Immig. Ct. N.Y. City Sept. 20, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review only the IJ's decision. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

I. Adverse Credibility Finding

Substantial evidence supports the IJ's determination that Sherpa was not credible as to his account of events after he relocated to Kathmandu in 2001. For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the IJ may, considering the totality of the circumstances, base a credibility finding on an asylum applicant's demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, "without regard to whether" they go "to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii).

Here, the record supports the IJ's partial adverse credibility based on inconsistencies between Sherpa's asylum application and his testimony. Specifically, the IJ reasonably found that: (1) Sherpa omitted significant events from his asylum application that he relied on in his testimony; and (2) Sherpa testified that he received a threatening letter in a different month than in his asylum application. Sherpa's explanations for these inconsistencies, that he omitted information from his original asylum application because he prepared it himself and gave inconsistent dates because he made an error in converting months from the Nepali calendar, do not compel a different conclusion. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Sherpa's asylum application provided a very detailed statement of facts, such that the IJ was warranted to find that his failure to mention a kidnapping attempt and a threatening letter is not explained by his contention that he made a mistake. And the IJ could reasonably ...


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