Nilca Martins-De Oliveira vs U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15706 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 8, 2011
________________________ JOHN LEY
CLERK
Agency No. A088-899-761
NILCA MARTINS-DE OLIVEIRA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 8, 2011)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Nilca Martins-De Oliveira (“Petitioner”) seeks review of the Board of
Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s (“IJ”) order
of removability after finding that Petitioner was not credible, and that she failed to
establish that she had been admitted to the United States.
In 2008, the Department of Homeland Security served Petitioner, a native
and citizen of Brazil, with a Notice to Appear, charging her as removable pursuant
to 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States who had
not been admitted or paroled. Petitioner contended that she was admitted or
paroled, and therefore was eligible for adjustment of status and waiver to cure her
fraudulent admission. The IJ found that Petitioner was not credible and that she
failed to satisfy her burden of establishing her time, manner, and date of entry. As
such, she was removable and not entitled to adjustment of status. The BIA
affirmed and agreed that Petitioner was not credible based upon multiple
inconsistencies between her testimony and the evidence she submitted, and the
fact that her testimony was unclear and changed during the course of the
proceedings. The BIA also determined that Petitioner failed to submit direct
evidence that she entered the United States using a photo-switched, fraudulent
passport.
Petitioner now argues that she could seek a waiver of her unlawful entry and
an adjustment of status because the evidence and her testimony established that
2
she entered using a photo-switched passport and was, therefore, inspected and
admitted. Petitioner asserts that the IJ used ambiguous and subjective language
with respect to her credibility, and its reasoning was not specific or cogent,
thereby preventing proper review by the BIA.1 Additionally, Petitioner argues that
the IJ failed to act as a neutral and impartial arbiter during her removal
proceedings.
I.
We review only the decision of the BIA, except to the extent that it
expressly adopts the IJ’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). We will not review the IJ’s findings or conclusions that the
BIA did not adopt or approve. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344
(11th Cir. 2007). Here, the BIA affirmed the IJ’s credibility determination and
stated that there was no clear error in the IJ’s adverse credibility finding, which the
BIA found was supported by specific, cogent reasons. Thus, the BIA approved the
IJ’s reasoning with respect to the adverse credibility finding, so we will review the
IJ’s reasoning as well. See Kazemzadeh, 577 F.3d at 1350.
1
Petitioner also argues that the IJ’s credibility determination was improper as it was
based upon stricter, post-September 11, 2001, airline security policies. We need not consider
Petitioner’s arguments pertaining to post-September 11, 2001, security policies because she did
not raise this argument before the BIA. See 8 U.S.C. § 1252(d)(1) (prohibiting review of
unexhausted claims); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006) (per curiam).
3
We review de novo the legal conclusions of the BIA and the IJ, and we
review findings of fact for substantial evidence. Id. We must affirm the BIA’s
decision if it is “supported by reasonable, substantial, and probative evidence on
the record considered as a whole. That means a finding of fact will be reversed
only when the record compels a reversal; the mere fact that the record may support
a contrary conclusion is not enough to justify a reversal.” Lopez, 504 F.3d at 1344
(citations omitted) (internal quotation marks omitted).
The IJ, in evaluating credibility, must consider the “totality of the
circumstances,” including
demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant’s or
witness’s account, the consistency between the applicant’s
or witness’s written and oral statements (whenever made
and whether or not under oath, and considering the
circumstances under which the statements were made), the
internal consistency of each such statement, the
consistency of such statements with other evidence of
record (including the reports of the Department of State on
country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). The BIA and the IJ must consider all evidence the
applicant introduces. Kazemzadeh, 577 F.3d at 1351. The IJ must make a clean
determination of credibility, such that the reviewing court is not “left in the dark”
4
as to whether the IJ believes the asylum seeker’s testimony. Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). An implicit finding that the
testimony is not credible is not sufficient. Id. “The [IJ] must consider the issues
raised and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Kazemzadeh, 577
F.3d at 1351 (internal quotation marks omitted).
When the BIA upholds an adverse credibility finding, the petitioner has the
burden to show that the credibility determination “was not supported by specific,
cogent reasons or was not based on substantial evidence.” Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (internal quotation marks omitted).
Under this test, we view “the record evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.”
Id. at 1286 (internal quotation marks omitted). Like any other factual finding, a
credibility determination “may not be overturned unless the record compels it.”
Id. at 1287 (internal quotation marks omitted).
The BIA and IJ gave specific, cogent reasons for finding Petitioner not
credible. Specifically, both noted inconsistencies between Petitioner’s testimony
and the numerous documents that she submitted—including inconsistencies
between her testimony, the dates on the plane ticket, the luggage claim ticket, the
5
hotel receipt, and the travel itinerary. Moreover, Petitioner could not produce the
original photo-switched passport that she allegedly used to enter the United States,
nor could she produce a copy. Thus, substantial evidence supports the BIA’s
reasons for discrediting Petitioner. Accordingly, we deny Petitioner’s petition for
review as to this issue.
II.
Because Petitioner failed to raise the issue of the IJ’s impartiality before the
BIA, we lack jurisdiction to consider this claim. See 8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per
curiam). Accordingly, we dismiss Petitioner’s petition for review as to this issue.
DENIED IN PART, DISMISSED IN PART.
6