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
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         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, 

, 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, 

, 167 (2d Cir. 2008).

    Substantial evidence supports the IJ’s adverse

credibility determination.   See Corovic v. Mukasey, 

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 

(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


                              3
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, 

, 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 

(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, 

, 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


                              4
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, 

, 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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