406 F. App'x 543

Pasang SHERPA, aka Kishwor Sherpa, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 10-1790-ag.

United States Court of Appeals, Second Circuit.

Jan. 19, 2011.

Gary J. Yerman, New York, New York, for Petitioner.

Tony West, Assistant Attorney General; Leslie McKay, Assistant Director; Melissa Lott, Trial Attorney, Office of Immigration Litigation, Washington, D.C., for Respondent.

PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges.

SUMMARY ORDER

Petitioner Pasang Sherpa, a native and citizen of Nepal, seeks review of the April 8, 2010, order of the BIA affirming the March 27, 2008, decision of Immigration Judge (“IJ”) Annette S. Elstein denying his application for asylum, withholding of removal, and CAT relief. In re Pasang Sherpa, No. [ AXXX XXX XXX ] (B.I.A. Apr. 8, 2010), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Mar. 27, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

The government argues that Sherpa failed to exhaust any challenge to the IJ’s adverse credibility determination by neglecting to address that determination on appeal to the BIA. We agree. While Sherpa stated in his Notice of Appeal to the BIA that he “was a credible witness,” he failed to articulate any error in the IJ’s credibility determination, or even acknowledge the IJ’s specific findings. In his brief to this Court, Sherpa does not address the government’s exhaustion argument, but instead challenges the IJ’s credibility determination with specificity.

In addition to the statutory requirement that petitioners exhaust the categories of relief they seek, 8 U.S.C. § 1252(d)(1), this Court generally will not consider arguments regarding individual issues that were not exhausted before the agency. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). While not jurisdictional, this judicially-imposed issue exhaustion requirement is mandatory. Id. at 119-20. In particular, a petitioner must challenge all findings that are dispositive of his claims, and the failure to do so is fatal to his petition for review. See Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir.2007). Although this Court has held *544that it may consider an issue not raised by an applicant in the course of an appeal to the BIA when the BIA nevertheless addressed the issue, Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1993), the BIA did not excuse Sherpa’s failure to exhaust when it explicitly noted that Sherpa did not challenge any of the IJ’s findings with particularity. Therefore, considering Sherpa’s new arguments would defeat the purpose of the issue exhaustion requirement — to allow the agency to review its own decisions for error after having the opportunity to consider the applicant’s arguments. See Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir.2004).

Even if we were to reach Sherpa’s unexhausted arguments, they are entirely without merit.

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 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).

Sherpa v. Holder
406 F. App'x 543

Case Details

Name
Sherpa v. Holder
Decision Date
Jan 19, 2011
Citations

406 F. App'x 543

Jurisdiction
United States

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