Lhamu Lama Sherpa v. Attorney General United States , 603 F. App'x 92 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3102
_____________
LHAMU CHHOTI LAMA SHERPA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Appeal for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-731-829)
Immigration Judge: Charles M. Honeyman
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2015
Before: SMITH, JORDAN and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: March 18, 2015)
______________
OPINION*
______________
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
VAN ANTWERPEN, Circuit Judge.
Petitioner Lhamu Chhoti Lama Sherpa (“Sherpa”) filed this Petition for Review of
the decision of the Board of Immigration Appeals, dated May 28, 2014, affirming an
Immigration Judge’s July 24, 2012 denial of her applications for political asylum,
withholding of removal, and protection under Article 3 of the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). Because substantial evidence supported the Immigration Judge’s finding that
petitioner was not credible, we will deny the Petition for Review.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Because we write only for the parties, we will only set forth the facts necessary to
inform our analysis. This appeal arises from events beginning in May of 2004. At that
time, Sherpa—a native and citizen of Nepal—operated Echo Trekking Business Pvt. Ltd.
(“Echo Trek”), a profitable trekking and mountaineering business in Kathmandu. Sherpa
operated the business with her husband, Ngima Nurbu Sherpa. While Echo Trek’s
customer base primarily consisted of foreigners, Sherpa also provided training to
members of the Nepal Army. In the off season, Sherpa worked as an informal advisor for
the Nepali Congress Party (“NCP”).
The following description of the events leading up to Sherpa’s departure from
Nepal for the United States in 2009 is based upon Sherpa’s account of those events. On
May 3, 2004, two Maoists visited Echo Trek and handed Sherpa a letter demanding that
she provide them with 500,000 rupees and mountain climbing training. She refused to
comply with either request. Sherpa did not interact with the Maoists again until May 24,
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2005, when three armed Maoists visited Echo Trek. Several Echo Trek employees,
including Sherpa’s husband, were present during this visit. The Maoists again demanded
money and training of Sherpa. Sherpa retreated to the back of the Echo Trek building
under the guise of preparing to comply with the Maoists’ request. She actually snuck out
of the back of the building and fled to her home. The Maoists did not pursue Sherpa, nor
did they question her employees or husband any further. The Maoists did not visit Echo
Trek again until 2008.
In August of 2007, Sherpa became the NCP Advisor for the Solokhumbu District.
As part of that role, she attended a political rally on March 26, 2008. Maoists attacked the
rally. Sherpa, along with several other NCP members, sustained minor injuries in the
attack. She received medical treatment but returned to campaigning the next day. Several
months later, on August 16, 2008, fifteen Maoists came to Echo Trek to deliver a
threatening letter to Sherpa and to seize the business. One month later, Sherpa observed a
local Maoist leader watching her residence. Sherpa then fled to the home of her uncle in
Gokarna, Nepal.
On November 4, 2008, Maoists visited Sherpa’s uncle’s home in Gokarna, looking
for Sherpa. They questioned her uncle and slapped him twice. Sherpa then left her uncle’s
house to stay with her sister-in-law, Doma Sherpa, in Jorpati, Nepal. On March 3, 2009,
five Maoists—again, looking for Sherpa—returned to Sherpa’s uncle’s home in Gokarna.
After learning of that visit, Sherpa decided to leave Nepal. She entered the United States
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on May 9, 2009.1 Her husband and the couple’s child remained in Nepal. She was
authorized to remain in the United States until August 6, 2009. She remained in the
country after the expiration of her lawful status and filed for asylum on April 21, 2010.
On May 20, 2010, the Department of Homeland Security (“DHS”) determined that
Sherpa was not eligible for asylum. DHS commenced removal proceedings against her on
June 21, 2010. DHS charged Sherpa with removability under 8 U.S.C. § 1227(a)(1)(B).
Sherpa conceded her removability but filed claims for asylum, withholding of removal,
and protection under CAT. A merits hearing to evaluate Sherpa’s application was held in
front of an Immigration Judge (“IJ”) in 2012. The IJ issued a decision finding Sherpa
removable on July 24, 2012. The IJ denied Sherpa’s applications for asylum, withholding
of removal, and protection under CAT.
The IJ found that Sherpa’s testimony was not credible. Specifically, the IJ found
that Sherpa’s testimony regarding the events leading up to her departure from Nepal and
her procurement of a February 20, 2009 letter from the NCP District Chairman was
implausible and therefore not credible. The IJ also found internal inconsistencies between
Sherpa’s testimony at the merits hearing and her own sworn statements and documentary
evidence. The IJ also noted that inconsistencies in letters from Sherpa’s husband and
neighbor called into question the reliability and authenticity of that evidence. Finally, the
IJ found that Sherpa failed to present sufficient corroborating evidence—namely,
statements from certain of her friends, family members, and former employees—to
1
Sherpa traveled to the United States pursuant to a tourist visa issued to her by the
United States embassy in Kathmandu, Nepal.
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bolster the portions of her testimony that the IJ found not credible. The IJ also found that
it was not unreasonable to expect Sherpa to provide this corroborating evidence.
Alternatively, the IJ found that Sherpa’s claims failed on the merits. Specifically,
the IJ found that Sherpa failed to meet her burden of establishing past persecution or a
well-founded fear of future harm if she were to return to Nepal.
Following the IJ’s decision, Sherpa petitioned the Board of Immigration Appeals
(“BIA”) for review. The BIA dismissed Sherpa’s appeal—finding that the IJ’s adverse
credibility determination was proper and finding no other clear errors in the IJ’s decision.
This petition followed.
II. DISCUSSION2
1. Standard of Review
When the BIA issues its own decision—as opposed to a summary affirmance of
the IJ’s decision—we review that decision. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d
Cir. 2009). However, “[w]hen the BIA’s decision substantially relies upon the decision of
the IJ, this court has jurisdiction to consider the IJ’s decision, as well as the BIA’s
decision.” Kaita v. Att’y Gen., 522 F.3d 288, 295–96 (3d Cir. 2008) (citing Xie v.
Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004)). Here, the BIA issued its own decision, but it
substantially relied on the decision of the IJ. Therefore, both the IJ’s and the BIA’s
decisions are within the scope of our review. Kaita, 522 F.3d at 295–96.
2
The BIA had jurisdiction to review the decision of the IJ dated July 24, 2012
pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. This Court has jurisdiction to review
final orders of removal pursuant to 8 U.S.C. § 1252(a).
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This Court reviews legal determinations of the IJ or BIA de novo, subject to
principles of deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir.
2010). We review factual findings, including adverse credibility determinations, under
the “substantial evidence” standard. Xie, 359 F.3d at 243. Under that standard, we must
uphold factual findings unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002) (quoting 8 U.S.C. § 1252(b)(4)(B) (2012)).
2. Asylum Claim
Sherpa first appeals the denial of her petition for asylum. Pursuant to the
Immigration and Nationality Act (“INA”), the Attorney General may grant asylum to any
person who has established that she is a refugee. 8 U.S.C. § 1158(b)(1)(A) (2012). The
INA defines a refugee as an individual outside of her country of nationality who “is
unable or unwilling to return to, and is unable or unwilling to avail himself or herself of
the protection of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Id. § 1101(a)(42)(A). A refugee can establish eligibility for
asylum by showing that (1) she was persecuted in the past on account of a protected
characteristic or (2) she has a well-founded fear of future persecution because of a
protected characteristic. Id.; 8 C.F.R. § 208.13(b).
The applicant bears the burden of establishing that she is a refugee. 8 U.S.C.
§ 1158(b)(1)(B)(i); 8 C.F.R. § 208.13(a) (2014). This burden may be satisfied by an
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applicant’s credible testimony. 8 C.F.R. § 208.13(a). By extension, an adverse credibility
finding is sufficient to establish that an applicant failed to satisfy her burden. In re A-S-,
21 I. & N. Dec. 1106, 1112 (BIA 1998) (“Because we adopt the [IJ’s] well-supported
determination that the respondent’s testimony cannot be accepted as credible, it follows
that the respondent has failed to satisfy his burdens of proof and persuasion.”); see also
Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (“An alien’s credibility, by itself, may
satisfy his burden, or doom his claim.” (citing Gao, 299 F.3d at 272)).
Therefore, in evaluating an individual’s application for asylum, the IJ must make a
threshold determination of credibility. Section 208(b)(1)(B)(iii) of the INA,3 provides:
Considering the totality of the circumstances, and all relevant factors, a trier of
fact may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, 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
(including the reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, 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).
“The IJ’s overall credibility determination does not necessarily rise or fall on each
element of the witness’s testimony, but rather is more properly decided on the cumulative
effect of the entirety of all such elements.” Jishiashvili v. Att’y Gen., 402 F.3d 386, 396
(3d Cir. 2005). The IJ is required to allow the alien to explain any testimonial
inconsistencies before it makes its credibility determination. Caushi v. Att’y Gen., 436
3
This provision is part of the REAL ID Act of 2005. It is undisputed that the
REAL ID Act applies to Sherpa’s current asylum application.
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F.3d 220, 226 (3d Cir. 2006). The IJ must also delineate the reasoning supporting an
adverse credibility finding. In re A-S-, 21 I. & N. Dec. 1106, 1109 (BIA 1998). The IJ’s
articulated reasoning must be supported by evidence in the record. Dia, 353 F.3d at 249.
Here, the IJ made an adverse credibility finding, and the BIA agreed with the IJ.
At the outset, we note that the IJ clearly explained the reasoning supporting his adverse
credibility determination. (IJ4 at 20–26). He also supported his reasoning with detailed
references to evidence in the record—namely, references to inconsistencies and
implausibilities contained within Sherpa’s testimony and corroborating evidence. (Id.).
Nevertheless, Sherpa challenges these adverse credibility findings on appeal,
arguing that the IJ’s determination was not supported by substantial evidence. She
contends that the IJ (1) engaged in impermissible speculation, (2) failed to afford Sherpa
the opportunity to explain the discrepancies in her testimony, (3) afforded too much
weight to discrepancies that were minor and not central to her claim, and (4) employed
faulty reasoning when determining that she lacked certain corroborative evidence.
(Appellant Br. at 37–39). We find these arguments unpersuasive.
A. Impermissible Speculation
Sherpa first argues that the IJ engaged in impermissible speculation because he
found her “explanation of why the Maoists did not pursue or punish her after she ignored
their 2004 and 2005 requests for a donation and training” to be implausible. (Appellant
Br. at 41). We disagree that the IJ made this finding of implausibility based on
4
“IJ” refers to the July 24, 2012 decision of the Immigration Judge in this matter.
This decision begins at page 8 of the Appendix to the Appellant’s Brief.
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speculation alone. Rather, the IJ made that finding after conducting a careful review of
Sherpa’s testimony and documentary evidence. (IJ at 21–22). The IJ then compared her
account of the events to information from Nepal’s 2005 country report,5 noting the
inconsistencies that led to his conclusion that her story was implausible. (Id. at 22). For
example, Sherpa testified that the Maoists did not take any action against her after she
ignored their requests for money and training in 2004 and 2005. (Id.). However, the 2005
country report on Nepal indicated that the “Maoists responded particularly violently to
those who ignored extortive demands in 2005.” (Id.). Accordingly, we find that the IJ did
not make this determination on speculation alone.
B. Failure to Allow Sherpa to Explain Discrepancies
Sherpa next argues that the IJ erred in not allowing her to explain certain
inconsistencies in her testimony. (Appellant Br. at 38). However, as the BIA noted, the IJ
questioned Sherpa regarding the inconsistencies in her testimony. (BIA6 at 2–3).
However, even in response to this questioning, Sherpa was unable to sufficiently explain
all of the inconsistencies in her testimony. (Id.). Further, even where Sherpa did proffer
explanations for the testimony, the IJ is not required to accept those explanations. See
Matter of D-R-, 25 I. & N. Dec. 445, 455 (BIA 2011) (“An Immigration Judge is not
required to accept a respondent’s assertions, even if plausible, where there are other
5
The Department of State prepares annual reports detailing the political situation
in other countries. The IJ reviewed the Department of State’s 2005 Country Report on
Nepal in connection with Sherpa’s appeal.
6
“BIA” refers to the May 28, 2014 decision of the Board of Immigration Appeals
in this matter. This decision begins at page 3 of the Appendix to the Appellant’s Brief.
9
permissible views of the evidence based on the record.” (citing Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985))). We therefore reject this argument.
C. Identified Inconsistencies Were Minor
Sherpa next argues that “the factors identified by the IJ and the Board to support
the adverse credibility determination were minor and not central to the claim.” (Appellant
Br. at 39). Again, we disagree. The INA provides that the IJ should assess inconsistencies
in an applicant’s testimony “without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii)
(2012). Therefore, Sherpa’s argument is unsupported by the statute governing her claim.
Further, the inconsistencies identified by the IJ did go to the heart of Sherpa’s
claim for asylum. For example, a requisite element of whether an applicant qualifies as a
refugee is whether she has a subjective, well-founded fear of future persecution. 8 U.S.C.
§ 1101(a)(42)(A). To establish that element, Sherpa relied upon a letter from the NCP
Chairman that stated that the Maoists posed a threat to Sherpa. (IJ at 22). However, her
testimony as to how she acquired that letter was inconsistent. (Id.). Further, her ultimate
admission that she traveled to a Maoist-controlled village to acquire the letter undercuts
her position that she feared the Maoists. (Id.). Accordingly, we also reject this argument.
D. Lack of Corroboration
Finally, Sherpa argues that the IJ erred in finding that she lacked certain necessary
corroborating evidence. (Appellant Br. at 39–40). “[W]here it is reasonable to expect
corroborating evidence for certain alleged facts pertaining to the specifics of an
applicant’s claim, such evidence should be provided.” In re S-M-J-, 21 I. & N. Dec. 722,
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725 (BIA 1997). To determine whether an applicant has provided sufficient
corroboration, an IJ conducts a three-step inquiry: (1) identify the facts that the applicant
can reasonably be expected to corroborate, (2) inquire whether the applicant has provided
necessary corroborating information, and (3) analyze whether the applicant has
adequately explained any failure to corroborate. Abdulai v. Ashcroft, 239 F.3d 542, 554
(3d Cir. 2001). “The [BIA] has also stated that it is generally reasonable to expect
applicants to produce letters from family members remaining in the applicant’s home
country.” Id. at 554–55 (citing In re M-D-, 21 I. & N. Dec. 1180 (BIA 1998)).
On appeal, Sherpa argues that the IJ inadequately performed this inquiry.
Specifically, she argues that (1) the IJ failed to explain why the corroborating evidence he
sought would have been readily available and (2) the IJ failed to give her an opportunity
to explain why she did not produce this evidence. (Appellant Br. at 52).
We find Sherpa’s first argument unpersuasive, as the IJ did explain why the
evidence would have been readily available. (IJ at 26). The IJ noted that the
documentation he sought primarily consisted of statements from Sherpa’s family, friends,
and former employees. (Id.). The IJ explained that this information should have been
accessible, as Sherpa “ought to have been able to request these documents by phone or
mail, as Nepal explicitly prohibits interference with the mail system.” (Id.). We find her
second argument similarly unpersuasive, as a review of the record does not show that
Sherpa ever attempted to explain why she could not produce these documents. Nor does
Sherpa cite a reason for not providing them in her briefs to this Court. Further, the BIA
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has held that production of the type of documents sought by the IJ in Sherpa’s case is
reasonable. Abdulai, 239 F.3d at 554. We accordingly reject Sherpa’s final argument.
We therefore find that the adverse credibility findings by the IJ was supported by
substantial evidence. Sherpa has failed to persuade us that “any reasonable adjudicator
would be compelled to conclude to the contrary.” Gao, 299 F.3d at 272 (quoting 8 U.S.C.
§ 1252(b)(4)(B)). We also find that these adverse credibility determinations are fatal to
Sherpa’s claim. Dia, 353 F.3d at 247. We therefore do not reach the IJ’s alternate holding
that Sherpa’s claims failed on the merits.
2. Withholding of Removal and CAT
Sherpa also appeals the decision to deny her request for withholding of removal
pursuant to INA § 241(b)(3) and relief under CAT. This Circuit has held that “[s]ince the
threshold for asylum is lower than for protection under the withholding of removal or
CAT provisions, rejection of the petitioners’ asylum claims necessarily requires that their
CAT and withholding claims be rejected as well.” Yu v. Att’y Gen., 513 F.3d 346, 349 (3d
Cir. 2008); see also In re A-S-, 21 I. & N. Dec. 1106, 1112 (BIA 1998) (“Inasmuch as the
respondent has failed to satisfy the lower burden of proof required for asylum, it follows
that he also has failed to satisfy the clear probability standard of eligibility required for
withholding of deportation.”). We accordingly affirm the decisions of the IJ and BIA to
deny Sherpa’s request for withholding of removal pursuant to INA § 241(b)(3) and relief
under CAT.
III. CONCLUSION
For the foregoing reasons, we will affirm.
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