         08-6236-ag
         Mewengkang v. Holder
                                                                                        BIA
                                                                              Reichenberg, IJ
                                                                               A096 266 185
                                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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                BARRINGTON D. PARKER,
 9                PETER W. HALL,
10                          Circuit Judges.
11       _________________________________________
12
13       AGUNG PUTRA MEWENGKANG,
14                Petitioner,
15
16                         v.                                   08-6236-ag
17                                                              NAC
18       ERIC H. HOLDER JR., U.S. ATTORNEY
19       GENERAL, 1
20                  Respondent.
21       _________________________________________




                 1
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), United States Attorney General Eric H. Holder Jr.
         is substituted for former Attorney General Michael B.
         Mukasey as Respondent in this case.
 1   FOR PETITIONER:        Benjamin B. Xue, New York, New York.
 2
 3   FOR RESPONDENT:        Tony West, Assistant Attorney
 4                          General, Anthony P. Nicastro, Senior
 5                          Litigation Counsel, Andrew N.
 6                          O’Malley, Trial Attorney, Office of
 7                          Immigration Litigation, Civil
 8                          Division, United States Department
 9                          of Justice, Washington, D.C.
10
11        UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED, that the petition for review

14   is DENIED in part and DISMISSED in part.

15        Petitioner Agung Putra Mewengkang, a native and citizen

16   of Indonesia, seeks review of the December 4, 2008 order of

17   the BIA affirming the July 31, 2007 decision of Immigration

18   Judge (“IJ”) Margaret R. Reichenberg, denying his

19   applications for asylum, withholding of removal, relief

20   under the Convention Against Torture (“CAT”), and

21   cancellation of removal under 8 U.S.C. § 1229b.     In re Agung

22   Putra Mewengkang, No. A096 266 185 (B.I.A. Dec. 4, 2008),

23   aff’g No. A096 266 185 (Immig. Ct. N.Y. City July 31, 2007).

24   We assume the parties’ familiarity with the underlying facts

25   and procedural history of the case.

26   I.   Asylum, Withholding of Removal, and CAT Relief

27        As a preliminary matter, because Mewengkang did not


                                  2
1    challenge the IJ’s pretermission of his asylum application

2    before either the BIA or this Court, he has abandoned that

3    claim.    See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d

4    Cir. 2007)(noting that “because Liu failed to argue before

5    either this Court or the BIA his claims for relief based on

6    the illegal nature of his departure from China, we consider

7    that basis for relief abandoned”).     Similarly, Mewengkang’s

8    mere reference to CAT protection in his brief does not

9    suffice as a challenge to the agency’s denial of that

10   relief.    See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545

11   n.7 (2d Cir. 2005) (issues not raised before this court are

12   waived and will not ordinarily be addressed on appeal).

13       When the BIA agrees with the IJ that a petitioner is

14   not credible and, without rejecting any of the IJ’s grounds

15   for decision, emphasizes particular aspects of that

16   decision, we review both decisions—or, more precisely, we

17   review the IJ’s decision including the portions not

18   explicitly discussed by the BIA.     See Yun-Zui Guan v.

19   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     We review the

20   agency’s factual findings, including adverse credibility

21   determinations, under the substantial evidence standard.

22   8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519


                                    3
1    F.3d 90, 95 (2d Cir. 2008).   We review de novo questions of

2    law and the application of law to undisputed fact.    See

3    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

4    Because Mewengkang’s application was filed prior to May 11,

5    2005, it is not subject to the amendments made to the INA by

6    the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(iii).

7        The agency’s adverse credibility finding is supported

8    by substantial evidence.   As the IJ found, Mewengkang gave

9    inconsistent testimony concerning the date he was allegedly

10   attacked and beaten by a mob in Indonesia.    Indeed, while

11   his asylum application stated that the incident occurred in

12   1994, he testified that it occurred in 1990. Mewengkang

13   argues that he provided sufficient explanation for this

14   inconsistency, i.e., that he was nervous at the hearing and

15   that this error was simply a minor mistake.    We disagree.

16   Because this attack was the only major incident of

17   persecution Mewengkang alleged, this was a substantial

18   discrepancy.   See Secaida-Rosales, 331 F.3d at 308-09

19   (discrepancy must be substantial).   In particular, as the IJ

20   noted, had the incident occurred in 1994, it would have been

21   after Mewengkang had returned to Indonesia after residing in

22   the United States for approximately two years, making it


                                   4
1    even more suspicious that Mewengkang could not recall the

2    chronology of events.   Cf. Diallo v. INS, 232 F.3d 279, 288

3    (2d Cir. 2000)(holding that a minor discrepancy may not

4    support an adverse credibility determination).     Finally,

5    contrary to Mewengkang’s arguments, the IJ did not err by

6    relying on his failure to submit corroborating evidence in

7    making an adverse credibility determination.     Although we

8    have stated that an IJ may not deny relief for failure to

9    produce corroborating documents unless the IJ follows

10   certain procedures to ensure sufficient notice to the

11   petitioner of gaps in the record, these requirements only

12   apply where the petitioner is “otherwise credible.”     See

13   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d

14   Cir. 2006).   Here, this was clearly not the case.

15         Accordingly, because the agency’s adverse credibility

16   determination was supported by substantial evidence, it

17   properly denied Mewengkang’s claim for withholding of

18   removal.   See Corovic, 519 F.3d at 95.

19   II.   Cancellation of Removal

20         As a final matter, because Mewengkang does not allege

21   any constitutional claim or question of law, we lack

22   jurisdiction to review the agency’s denial of his

                                     5
1    application for cancellation of removal based on its

2    discretionary determination that he failed to demonstrate

3    “exceptional and extremely unusual hardship” under 8 U.S.C.

4    § 1229b(b)(1)(D).   See 8 U.S.C. § 1252(a)(2)(B)(i)

5    (precluding our jurisdiction to review any judgment granting

6    relief under 8 U.S.C. § 1229b); De La Vega v. Gonzales, 436

7    F.3d 141, 144 (2d Cir. 2006).

8        For the foregoing reasons, the petition for review is

9    DENIED in part and DISMISSED in part.   As we have completed

10   our review, any stay of removal that the Court previously

11   granted in this petition is VACATED, and any pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk




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