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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12327
Non-Argument Calendar
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Agency No. A042-732-496
CHIN JU LAU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 15, 2020)
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Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Chin Ju Lau seeks review of the Board of Immigration Appeals’ (“BIA”)
order dismissing his appeal of the Immigration Judge’s (“IJ”) denial of withholding
of removal and relief under the Convention Against Torture (“CAT”).
Lau is a Chinese citizen who entered the United States as a lawful permanent
resident. The Department of Homeland Security issued him a notice to appear and
an I-261 form alleging that he was removable for being an alien who knowingly
encouraged, induced, assisted, abetted, or aided another alien in attempting to
illegally enter the United States, and because he was convicted of an aggravated
felony: conspiracy and attempted smuggling of illegal aliens for the purpose of
commercial advantage and financial gain.
The IJ issued an oral decision finding that Lau was removable because he
committed an aggravated felony, concluding that Lau had not shown a clear
probability that his life or freedom would be threatened on any protected ground
were he removed to China. The IJ did not credit his testimony due to a material
inconsistency regarding whether he would take his children back to China with
him, and denied his applications for relief. And the IJ found that this
inconsistency, coupled with Lau’s failure to establish a clear probability of future
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persecution or that his children would accompany him to China, was sufficient to
deny Lau’s CAT claims
Lau appealed to the BIA, which dismissed his appeal. The BIA stated that
Lau did not challenge the IJ’s finding that he was removable because he was
convicted of an aggravated felony. It found that, even if his testimony were
credible, he would still be subject to removal because he did not establish past
persecution. The BIA agreed with the IJ’s finding that Lau did not establish that
his children would accompany him to China and trigger persecution because of
China’s family-planning policy. And it found that Lau’s CAT claim could not
succeed because LAU did not experience past torture and was not likely to be
identified as violating China’s family-planning policy.
We review the BIA’s decision as the final agency decision, unless it
expressly adopted the IJ’s opinion or agreed with the IJ’s reasoning.
Perez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019). Where
the BIA explicitly agrees with the findings of the IJ, we will review the decision of
both the BIA and the IJ as to those issues. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009).
Our jurisdiction to review orders of removal is limited by the Immigration
and Nationality Act (“INA”), which provides that no court shall have jurisdiction
to review a final order of removal against an alien who is removable for having
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committed an aggravated felony. INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii); INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). We retain
jurisdiction, however, over “constitutional claims or questions of law raised upon a
petition for review.” INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have
held that a challenge to an IJ’s weighing of the evidence does not present a legal
question for the purposes of INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).
Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1196 97 (11th Cir. 2008). In
addition, a credibility determination is considered a finding of fact. See Xiu Ying
Wu v. U.S. Att’y Gen.,
712 F.3d 486, 493 (11th Cir. 2013). A legal question
involves an assertion that an incorrect legal standard was applied. See Alvarez
Acosta, 524 F.3d at 1197.
We also lack jurisdiction to review any claim as to which the petitioner has
failed to exhaust his or her administrative remedies. Amaya-Artunduaga v. U.S.
Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). Thus, we lack jurisdiction to
hear any argument that a petitioner failed to raise before the BIA. Id.; see INA
§ 242(d)(1), 8 U.S.C. § 1252(d)(1). In order for a petitioner’s claim to be
exhausted, the petitioner must have raised the “core issue now on appeal” before
the BIA. Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1297 (11th Cir. 2015)
(quotation marks omitted).
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When a petitioner fails to offer argument on an issue on appeal, that issue is
abandoned. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir.
2005). To adequately raise an issue, a litigant must do so “plainly and
prominently” by, for example, “devoting a discrete section of his argument to those
claims.” Cole v. U.S. Att’y Gen.,
712 F.3d 517, 530 (11th Cir. 2013) (alteration
adopted) (quotation marks omitted).
Lau has not raised any legal or constitutional questions in this court; we
therefore lack jurisdiction over his petition for review. Lau does not challenge the
IJ’s finding that he is removable because he committed an aggravated felony. This
issue is therefore abandoned. See
Sepulveda, 401 F.3d at 1228 n.2. Lau raised due
process arguments before the BIA but has not raised any such arguments in this
court. That constitutional issue is likewise abandoned.
Id.
Lau’s petition contains no legal questions. He challenges the IJ’s adverse
credibility finding and argues that he submitted enough evidence to show a
likelihood of persecution and torture upon returning to China because of his felony
conviction and violation of China’s family-planning policy. These are challenges
to the IJ’s weighing of the evidence. Under our precedent, these challenges do not
present a legal question for the purposes of INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D).
Alvarez-Acosta, 524 F.3d at 1196-97. We therefore cannot
consider them.
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Finally, Lau argues that he is entitled to CAT relief because he would be
tortured in China due to his felony conviction. Lau did not raise this claim before
the BIA. Because he did not administratively exhaust claim, we lack jurisdiction
over it. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga, 463 F.3d
at 1250.
We lack jurisdiction over Lau’s petition for review because he was deemed
removable for having committed an aggravated felony and has not raised a legal or
constitutional question in his petition. Therefore, we dismiss Lau’s petition.
PETITION DISMISSED.
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