Ngawang Pempa v. Holder , 480 F. App'x 69 ( 2012 )

11-3035-ag
Pempa v. Holder
BIA
Elstein, IJ
A097 485 497
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 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 8th day of May, two thousand twelve.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
NGAWANG PEMPA,
AKA CHIHIRING SHERPA NORPU,
AKA CHHIRING SHERPA NORPU,
Petitioner,
v. 11-3035-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jin Hu, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
James A. Hunolt, Erica B. Miles,
Senior Litigation Counsel, Office of
Immigration Litigation, United States
Department of Justice, Washington,
D.C.
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.
Ngawang Pempa, who claims to be a native of Tibet and
citizen of China, seeks review of a June 27, 2011, order of
the BIA affirming the July 29, 2009, decision of Immigration
Judge (“IJ”) Annette S. Elstein, which denied his applications
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Ngawang Pempa, No.
A097 485 497 (B.I.A. June 27, 2011), aff’g No. A097 485 497
(Immig. Ct. N.Y. City July 29, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588
F.3d 90, 93-94 (2d Cir. 2009).
Pempa challenges the agency’s denial of his application
for asylum and withholding of removal, arguing that through
his credible testimony, he established and reasonably
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corroborated his identity and his claim of persecution in
Tibet on account of his political opinion. We deny the
petition for review, as the agency’s adverse credibility
determination is supported by substantial evidence. Shi Jie
Ge, 588 F.3d at 93-94
In finding Pempa not credible, the agency reasonably
relied on testimony that was internally inconsistent and
conflicted with witness testimony as well as other evidence in
the administrative record. See Secaida-Rosales v. INS, 331
F.3d 297, 308-09 (2d Cir. 2003).1 As the agency observed,
Pempa’s testimony was inconsistent with the testimony of his
sole witness regarding the distance between their homes in
Tibet, Pempa’s employment in Tibet, which animals the witness
raised in Tibet, whether Pempa had ever met the witness’s
husband, and where Pempa and the witness first saw each other
in the United States. The agency also noted internal
inconsistencies in Pempa’s testimony regarding when he first
met the Tibetan businesswoman who gave him a video showing
oppression of Tibetan political dissidents, how often Pempa
1
In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008),
we recognized that the Real ID Act abrogated in part the holding in
Secaida-Rosales for cases filed after May 11, 2005, the effective
date of the Act. Id. Because Pempa’s application was filed before
this date, Secaida-Rosales remains good law. See Dong Zhong Zheng
v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).
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worked for this businesswoman, and when he was arrested for
possession of the video. Finally, as the agency observed,
Pempa’s testimony that he threw away his Chinese national
identification card en route to Nepal conflicted with his
prior statement that this card was seized by the Chinese
police.
Pempa attempted to explain his inconsistencies by
asserting that his prior inconsistent testimony was a
“mistake” and that his witness didn’t “remember exactly.”
However, the agency reasonably declined to credit these
explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that an agency need not credit an
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to do
so). Some of the inconsistencies noted by the agency, such as
the animals the witness raised in Tibet or the number of times
per year the Tibetan businesswoman visited Pempa, standing
alone, are “relatively minor and isolated and do not concern
material facts.” See Diallo v. BIA, 548 F.3d 232, 234 (2d
Cir. 2008) (citing Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 335 (2d Cir. 2006)). However, when considered
cumulatively, the BIA reasonably determined that the
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inconsistencies and contradictions in the administrative
record support the IJ’s adverse credibility finding. Tu Lin
v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (internal
citations omitted); see also Xian Tuan Ye v. Dep’t of Homeland
Security, 446 F.3d 289, 294 (2d Cir. 2006) (“our review does
not permit us to engage in an independent evaluation of the
cold record or ask ourselves whether, if we were sitting as
fact finders, we would credit or discredit an applicant’s
testimony”) (internal citation omitted). Because the record
supports the agency’s conclusions, a reasonable fact-finder
would not be compelled to conclude to the contrary. See Xian
Tuan Ye, 446 F.3d at 294.
Because the adverse credibility determination in this
case necessarily precludes Pempa from demonstrating either his
identity or that he suffered persecution, it necessarily
precludes success on his claim for asylum and withholding of
removal, rendering his other arguments moot. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wangchuck v. DHS,
448 F.3d 524, 528-29 (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
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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
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