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

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 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

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
3

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
4

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
5

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
6

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