09-1783-ag
Cheng v. Holder
BIA
Abrams, IJ
A094 789 272
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
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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 3 rd day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
QIKANG CHENG,
Petitioner,
v. 09-1783-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Barry J. Pettinato,
Assistant Director; Kristin A.
Moresi, Trial Attorney, United
States Department of Justice, Civil
Division, Office of Immigration
Litigation, 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, in part, and DISMISSED, in part.
Petitioner Qikang Cheng, a native and citizen of the
People’s Republic of China, seeks review of an April 3, 2009
order of the BIA affirming the July 23, 2007 decision of
Immigration Judge (“IJ”) Steven R. Abrams denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Qikang
Cheng, A094 789 272 (B.I.A. Apr. 3, 2009), aff’g No. A094
789 272 (Immig. Ct. N.Y. City Jul. 23, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review 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. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility determination. See Corovic v. Mukasey, 519 F.3d
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90, 95 (2d Cir. 2008). In finding Cheng not credible, the
IJ relied on the following: (1) his assessment of Cheng’s
demeanor; (2) the implausibility of Cheng’s testimony that
he had been practicing Falun Gong for over a year and a half
given his inability to perform several important steps in
the exercises; (3) inconsistencies between Cheng’s testimony
and that of his cousin regarding when Cheng practices Falun
Gong; and (4) Cheng’s failure to produce corroborating
evidence. Cheng does not challenge these findings with any
specificity, arguing only that the discrepancy over when he
performs Falun Gong is too minor to support an adverse
credibility determination. We are not persuaded. “[A]n IJ
may rely on any inconsistency or omission in making an
adverse credibility determination as long as the ‘totality
of the circumstances’ establishes that an asylum applicant
is not credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in
original) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)).
The totality of the record in this case supports the
IJ’s adverse credibility determination. In urging
otherwise, Cheng challenges the IJ’s finding that his
failure to mention in his asylum application the length of
time that Chinese authorities forced him to kneel supports
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an adverse credibility determination. Although asylum
applicants are not required to list every detail of claimed
persecution on their I-589 forms, see Pavlova v. INS, 441
F.3d 82, 90 (2d Cir. 2006), we perceive no error in the IJ’s
reliance on this omission as it directly pertains to the
claim of persecution, see Xiu Xia Lin, 534 F.3d at 167
(holding that alien’s failure to include length of detention
in asylum application was substantial evidence supporting
IJ’s adverse credibility determination).
The IJ also found implausible Cheng’s testimony
regarding how he first learned about Falun Gong and whether
he was required to sign a written notice following his
release from detention. Although Cheng challenges these
implausibility findings, we are not “left with the definite
and firm conviction that a mistake has been committed.”
Wenshang Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).
Because the findings Cheng does not challenge, combined with
those discussed above, constitute substantial evidence
supporting the IJ’s adverse credibility determination, we
deny the petition for review, in part.
Finally, to the extent Cheng challenges the IJ’s denial
of withholding of removal and CAT relief, we lack
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jurisdiction to consider these arguments as Cheng failed to
exhaust them before the BIA. See 8 U.S.C. § 1252(d)(1);
Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
Accordingly, we dismiss the petition for review, in part.
For the foregoing reasons, the petition for review is
DENIED, in part, and DISMISSED, in part. As we have
completed our review, 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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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