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
6