Jesus Manuel Sayol-Hernandez v. U.S. Atty. Gen. , 300 F. App'x 673 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 17, 2008
No. 08-12210 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A99-924-945
A99-924-946
JESUS MANUEL SAYOL-HERNANDEZ,
LUIMAR YELITZA NAHR-YAYA,
LUIS MANUEL SAYOL,
MIGUEL VICENTE SAYOL-NAGR,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 17, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Jesus Manuel Sayol-Hernandez, his wife Luimar Yelitza Nahr-Yaya, and
their two children, all natives and citizens of Venezuela, seek review of the BIA’s
order affirming the IJ’s removal order and denial of their claims for asylum and
withholding of removal under the Immigration and Nationality Act, 8 U.S.C. §§
1158 and 1231, and relief under the Convention Against Torture (CAT), 8 C.F.R.
§ 208.16(c). Sayol contends that his family is eligible for asylum, despite the fact
that he failed to apply for it within a year of entering the United States, because he
meets the extraordinary circumstances exception to that rule. He further contends
that his family is entitled to asylum and withholding of removal because of past
persecution and a well-founded fear of future persecution should he return to
Venezuela. Finally, Sayol argues that the IJ failed to give adequate consideration
to his CAT claim.
I.
We review only the BIA’s decision, but to the extent that the BIA adopts the
IJ’s reasoning, we review the IJ’s decision as well. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, although the BIA did not expressly adopt the
IJ’s decision, the BIA relied on the IJ’s reasoning. Accordingly, we review both
decisions. See id.
We review the BIA and IJ’s determinations using the substantial evidence
test, which requires us to uphold their decisions if they are “supported by
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reasonable, substantial, and probative evidence on the record considered as a
whole.” Rodriguez Morales v. United States Att’y Gen., 488 F.3d 884, 890 (11th
Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815
(1992)). “To reverse the [BIA’s] fact findings, we must find that the record not
only supports reversal, but compels it.” Mendoza v. United States Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003); see also Elias-Zacharias, 502 U.S. at 481 n.1,
112 S. Ct. at 815 n.1.
II.
Sayol first contends that his family qualifies for asylum under the
Immigration and Nationality Act, 8 U.S.C. § 1158. Any alien who arrives in the
United States may apply for asylum; however, under 8 U.S.C. § 1158(a)(2)(B), the
alien must “demonstrate[] by clear and convincing evidence that the application
has been filed within 1 year after the date of the alien’s arrival in the United
States.” The law provides an exception to this if the alien can satisfy the Attorney
General that changed or extraordinary circumstances prevented filing within the
one-year deadline. See 8 U.S.C. § 1158(a)(2)(D).
Sayol argues that, although he arrived in the United States in 2003 and filed
for asylum in 2006, he meets the “extraordinary circumstances” exception to the
one-year rule. The IJ and BIA disagreed with Sayol and denied his application for
asylum as untimely. This Court lacks subject-matter jurisdiction to review those
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decisions.
“No court shall have jurisdiction to review any determination of the
Attorney General” regarding the timeliness of an alien’s application or whether an
alien qualifies for an exception to the one-year deadline. 8 U.S.C. § 1158(a)(3);
see also Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 956 (11th Cir.
2005 (holding that 8 U.S.C. § 1158(a)(3) removes our jurisdiction to review
findings concerning the timeliness of an alien’s application or the existence of
extraordinary circumstances).
We do not have jurisdiction to evaluate the IJ or BIA’s finding that Sayol’s
asylum application was untimely. Thus, we dismiss the petition as to Sayol’s
claim for asylum.
III.
Sayol contends that his family is entitled to withholding of removal under 8
U.S.C. § 1231(b)(3)(A). An alien can avoid removal if the Attorney General
decides that the “alien’s life or freedom would be threatened in [his] country
because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien bears the burden
to show that it is “more likely than not []he will be persecuted or tortured upon
being returned to [his] country.” Sepulveda v. United States Att’y Gen., 401 F.3d
1226, 1232 (11th Cir. 2005) (quotation omitted).
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Sayol, a machinist by trade, testified that between 1992 and 1999 he also
worked for the Venezuelan military as an undercover investigator. Sayol stated
that he investigated individuals who opposed the Venezuelan government,
including Hugo Chavez. His duties included gathering information, taking pictures
and videos, and acting as a driver and bodyguard for his superiors. Sayol stated
that some of the individuals he investigated were arrested, but that he was unaware
of what happened to them after that. After Chavez was elected to the presidency in
1998, Sayol quit working for the military because he believed that the new
government had learned of his activities in support of the old one. Sayol testified
that he began receiving threatening telephone calls, possibly from the “Bolivarian
Circles” group, in 1999, though his wife testified that the threats began in 2002. In
response to the calls, Sayol claimed to have moved his family several times within
Caracas, but his wife stated that they never moved before coming to the United
States in 2003.
Sayol testified that in late 2002 an unknown gunman fired shots at his car
after he and his son attended a baseball game. Sayol also testified that he worked
as a security guard at a number of opposition marches in 2002 and was hit with
sticks or stones, causing minor injuries. After these incidents, Sayol fled with his
wife and children to the United States, leaving behind a number of other close
relatives who he testified have not been harmed. At the hearing before the IJ,
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Sayol offered background materials on Venezuela and identification documents
that indicate that Sayol had worked for the military.
The IJ and BIA ruled that Sayol’s testimony was not credible because of
discrepancies between his testimony and his wife’s, and because his stated role in
the military was too vague. Sayol has waived any challenge to the adverse
credibility determination in this case by failing to argue the issue on appeal. See
Sepulveda, 401 F.3d at 1228 n.2 (noting that when a party fails to offer argument
on an issue, it is abandoned).
While credible testimony alone can be sufficient to establish eligibility for
withholding of removal, “[c]onversely, an adverse credibility determination alone
may be sufficient to support [its] denial.” Ruiz v. United States Att’y Gen., 440
F.3d 1247, 1255 (11th Cir. 2006) (quotation omitted). But “[i]f an applicant
produces evidence beyond his own testimony, it is not sufficient for the IJ to rely
solely on an adverse credibility determination in those instances.” Id.; see also
Yang v. United States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (“The
weaker the applicant’s testimony, however, the greater the need for corroborative
evidence.”).
In this case, the corroborative evidence is not compelling. Sayol’s burden of
proof is to demonstrate that it is more likely than not that he will be persecuted or
tortured if returned to Venezuela. See Sepulveda, 401 F.3d at 1232. Though Sayol
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produced documents establishing that he worked for the Venezuelan military, there
is no evidence beyond Sayol’s testimony that he investigated or participated in the
alleged investigation of Chavez. Further, the 2006 State Department Country
Report for Venezuela indicates that there have been no reports of the Venezuelan
government or its agents engaging in politically motivated killings. The Country
Report is supported by the fact that Sayol’s parents, sister, brother, and nephew
still live in Venezuela and have not been harmed.
In light of the IJ’s finding that Sayol’s testimony was not credible and the
weakness of the corroboration for Sayol’s claims, substantial evidence supports the
IJ’s and BIA’s denial of withholding of removal. Accordingly, we deny the
petition as to this issue.
IV.
Lastly, Sayol contends that his family is entitled to relief under the
Convention Against Torture, 8 C.F.R. § 208.16(c)(2). Specifically, Sayol argues
that this Court remands cases where the IJ and BIA have failed to make adequate
findings or give reasoned consideration to the evidence that the alien has offered
under the CAT. See, e.g., Mezvrishvili v. United States Att’y Gen., 467 F.3d 1292,
1297 (11th Cir. 2006) (vacating BIA and IJ findings that failed to offer “a reasoned
decision in consideration of [the petitioner’s] credible testimony”).
Sayol, however, failed to argue to the BIA that the IJ’s findings were not
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based on reasoned consideration. In fact, Sayol did not raise the CAT issue at all
in his appeal to the BIA. “[W]e lack jurisdiction to consider claims that have not
been raised before the BIA.” Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir.
2003). Accordingly, we dismiss the petition as to the issue of relief under the
CAT.
DENIED IN PART, DISMISSED IN PART.
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