Sherpa v. Garland

• Docket Number: 20-2129-ag
• Decision Date: 18 September 2023
• Parties: PEMA SHERPA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

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PEMA SHERPA, Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.

No. 20-2129-ag

United States Court of Appeals, Second Circuit

September 18, 2023

UNPUBLISHED OPINION

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18^th day of September, two thousand twenty-three.

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FOR PETITIONER: Jason Schaffer, New York, NY

FOR RESPONDENT Jonathan K. Ross, Trial Attorney, Office of Immigration Litigation, Civil Division (Zoe J. Heller, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC

PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, Circuit Judges.

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 Pema Sherpa, a native and citizen of Nepal, seeks review of a June 19, 2020 decision of the BIA affirming a November 30, 2016 decision of an Immigration Judge (IJ), which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We assume the parties' familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to deny the petition.

The BIA assumed, contrary to the IJ's adverse credibility finding, that Sherpa testified credibly but agreed with the IJ's alternative ground for denying Sherpa's application, namely that she had not demonstrated past mistreatment

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amounting to persecution. We therefore "review the decision of the BIA" and "assume, but do not determine, [Sherpa's] credibility." 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) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for substantial evidence and questions of law and application of law to fact de novo).

An applicant for asylum has the burden to establish a well-founded fear of future persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b)(1), (b)(2). When an applicant establishes that she suffered past persecution, she is presumed to have a well-founded fear of future persecution on the basis of the original claim. 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). The presumption may be rebutted if the Government demonstrates that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality" or that "[t]he applicant could avoid persecution by relocating to another part of the...