Pursuant to Federal Rule of Appellate Procedure 1 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. 08 -6236-ag Mewengka

ng v. Holder BIA Reichenberg, IJ A096 266 185 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULI N G S 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 day of January, two thousand ten. th 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

_________________________________________2 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 1 1 UPON DUE CONSIDERATION of this petition for review of a 1 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 4 is DENIED in part and DISMISSED in part. 1 5 Petitioner Agung Putra Mewengkang, a native and citizen 1 6 of Indonesia, seeks review of the December 4, 2008 order of 1 7 the BIA affirming the July 31, 2007 decision of Immigration 1 8 Judge (“IJ”) Margaret R. Reichenberg, denying his 1 9 applications for asylum, withholding of removal, relief 2 0 under the Convention Against Torture (“CAT”), and 2 1 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’gNo. A096 266 185 (Immig. Ct. N.Y. City July 31, 2007). 2 4 We assume the parties’ familiarity with the underlying facts 2 5 and procedural history of the case. 2 6 I. Asylum, Withholding of Removal, and CAT Relief 2 7 As a preliminary matter, because Mewengkang did not3 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 1 0 relief. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 1 1 n.7 (2d Cir. 2005) (issues not raised before this court are 1 2 waived and will not ordinarily be addressed on appeal). 1 3 When the BIA agrees with the IJ that a petitioner is 1 4 not credible and, without rejecting any of the IJ’s grounds 1 5 for decision, emphasizes particular aspects of that 1 6 decision, we review both decisions—or, more precisely, we 1 7 review the IJ’s decision including the portions not 1 8 explicitly discussed by the BIA. See Yun-Zui Guan v. 19 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). We review the 2 0 agency’s factual findings, including adverse credibility 2 1 determinations, under the substantial evidence standard. 2 2 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey , 5194 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 1 0 attacked and beaten by a mob in Indonesia. Indeed, while 1 1 his asylum application stated that the incident occurred in 1 2 1994, he testified that it occurred in 1990. Mewengkang 1 3 argues that he provided sufficient explanation for this 1 4 inconsistency, i.e., that he was nervous at the hearing and 1 5 that this error was simply a minor mistake. We disagree. 1 6 Because this attack was the only major incident of 1 7 persecution Mewengkang alleged, this was a substantial 1 8 discrepancy. See Secaida-Rosales , 331 F.3d at 308-09 1 9 (discrepancy must be substantial). In particular, as the IJ 2 0 noted, had the incident occurred in 1994, it would have been 2 1 after Mewengkang had returned to Indonesia after residing in 2 2 the United States for approximately two years, making it5 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 1 0 certain procedures to ensure sufficient notice to the 1 1 petitioner of gaps in the record, these requirements only 1 2 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 1 4 Cir. 2006). Here, this was clearly not the case. 1 5 Accordingly, because the agency’s adverse credibility 1 6 determination was supported by substantial evidence, it 1 7 properly denied Mewengkang’s claim for withholding of 1 8 removal. See Corovic , 519 F.3d at 95. 1 9 II. Cancellation of Removal 2 0 As a final matter, because Mewengkang does not allege 2 1 any constitutional claim or question of law, we lack 2 2 jurisdiction to review the agency’s denial of his6 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).

For the foregoing reasons, the petition for review is 8 9 DENIED in part and DISMISSED in part. As we have completed 1 0 our review, any stay of removal that the Court previously 1 1 granted in this petition is VACATED, and any pending motion 1 2 for a stay of removal in this petition is DISMISSED as moot. 1 3 Any pending request for oral argument in this petition is 1 4 DENIED in accordance with Federal Rule of Appellate 1 5 Procedure 34(a)(2), and Second Circuit Local Rule 34(b). 1 6 FOR THE COURT: 1 7 Catherine O’Hagan Wolfe, Clerk