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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13170
Non-Argument Calendar
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Agency No. A215-813-676
ANIL KUMAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 24, 2020)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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Anil Kumar seeks review of the final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application
for asylum, withholding of removal, and deferral of removal under the Convention
Against Torture (“CAT”). On appeal, Kumar raises two arguments: (1) the IJ
violated his due process rights, and (2) substantial evidence does not support the
adverse credibility determination or the determinations that he was not eligible for
asylum, withholding of removal, or CAT relief.
After careful review, we dismiss Kumar’s petition in part and deny it in part.
With respect to the due process arguments, we conclude that Kumar has not
properly exhausted those claims and, as a result, we do not have jurisdiction to
hear them. And with respect to the second issue, we conclude that substantial
evidence supported each of the BIA’s determinations.
He argues that the IJ violated his due process rights by (1) incorrectly
advising him of the allegations in the notice to appear (“NTA”) and charges of
removability and (2) not designating a country for removal. He also argues that
substantial evidence does not support the adverse credibility determination or the
determinations that he was not eligible for asylum, withholding of removal, or CAT
relief.
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I. DUE PROCESS VIOLATIONS
Kumar first argues that the IJ violated his due process rights by
(1) incorrectly advising him of the allegations in the notice to appear (“NTA”) and
charges of removability and (2) not designating a country for removal. We review
only the decision of the BIA, except to the extent that the BIA expressly adopts the
IJ’s decision. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). Where
the BIA agrees with the IJ’s reasoning, we will also review the IJ’s decision to that
extent.
Id.
We review due process claims de novo. Lapaix v. U.S. Att’y Gen.,
605 F.3d
1138, 1143 (11th Cir. 2010). We also review jurisdictional issues de novo and have
an independent obligation to determine that we have jurisdiction to hear claims
presented to us. Chao Lin v. U.S. Att’y Gen.,
677 F.3d 1043, 1045 (11th Cir. 2012).
For us to exercise jurisdiction over a petition for review in an immigration case, an
alien seeking relief must exhaust the administrative remedies available to him prior
to obtaining judicial review. INA § 242(d)(1),
8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250–51 (11th Cir. 2006).
The purpose of the exhaustion doctrine is to provide the agency with a full
opportunity to consider an alien’s claims for relief and compile an adequate record
for judicial review. Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 800 (11th Cir. 2016).
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We lack jurisdiction over unexhausted claims, even if the BIA addressed them sua
sponte. Amaya-Artunduaga,
463 F.3d at 1250–51.
To exhaust his available remedies, the petitioner must present all claims to
the BIA. Jeune, 810 F.3d at 800. “This is not a stringent requirement. Simply put,
the alien must have previously argued 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 omitted). The petitioner also must “set out any discrete arguments he
relies on in support of that claim.” Jeune, 810 F.3d at 800. There is no obligation
to use precise legal terminology or provide particularly developed arguments in
support of a claim. Id. However, “[u]nadorned, conclusory statements do not
satisfy this requirement, and the petitioner must do more than make a passing
reference to the issue.” Id. (quotation omitted). “[I]t is not enough that the
petitioner has merely identified an issue to [the BIA].” Id. “Unless a petitioner
raises a purely legal question, the BIA cannot review and correct errors without the
petitioner first providing [his] argument’s relevant factual underpinnings.”
Indrawati, 779 F.3d at 1298.
Here, we conclude that Kumar did not exhaust his due process arguments.
In his brief before the BIA, he did not argue that IJ’s failure to follow procedural
regulations alone required reversal or that the IJ did not properly advise him of the
charges of removal, and he only asserted that the IJ violated due process by failing
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to designate a country for removal in a passing statement in the procedural history
section of his brief. That thin statement, “[u]nadorned” by any indication that it
was raising a major issue, was plainly insufficient under our precedent to exhaust
his due process claims. Accordingly, we dismiss those arguments for lack of
jurisdiction.
II. SUBSTANTIAL EVIDENCE
Second, Kumar argues that substantial evidence did not support the BIA’s
adverse credibility determination or its determinations of his ineligibility for
asylum, withholding of removal, or CAT relief. When reviewing the BIA’s
decision, we review legal questions de novo. Zhou Hua Zhu v. U.S. Att’y Gen.,
703
F.3d 1303, 1307 (11th Cir. 2013). Factual determinations are reviewed under the
substantial-evidence test, which requires us to view the record in the light most
favorable to the agency’s decision and draw all reasonable inferences in its favor.
Adefemi v. Ashcroft,
386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). We must
affirm the BIA’s decision if, considering the record as a whole, “it is supported by
reasonable, substantial, and probative evidence.” Id. at 1027 (quotation omitted).
To reverse administrative factual findings, we must determine that the record
“compels” reversal, not merely that it supports a different conclusion. Id.
We first address Kumar’s argument relating to the BIA’s adverse credibility
determination. As a threshold matter, we note that credibility determination is a
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factual finding that we review under the substantial evidence test. Ruiz v. U.S.
Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006). In that respect, “we may not
substitute [our] judgment for that of the [IJ] with respect to credibility findings.”
Id. (quotation omitted, alterations in original).
The IJ must support an adverse credibility determination with “specific,
cogent reasons” for that determination.
Id. The burden then shifts to the petitioner
to show that the determination “was not supported by specific, cogent reasons or
was not based on substantial evidence.”
Id. (quotation and alteration omitted). A
credibility determination alone can be sufficient to support the denial of an asylum
application.
Id. However, if the IJ does not expressly find a petitioner’s testimony
to be credible, an adverse credibility finding will not be implied. See Yang v. U.S.
Atty. Gen.,
418 F.3d 1198, 1201 (11th Cir. 2005) (assuming “that any credibility
determinations by the IJ were not dispositive of the appeal” where the IJ only
called the claims a “ridiculous fabrication” and the alien’s testimony “extremely
inconsistent and [making] absolutely no sense whatsoever” but did not make an
explicit finding that the testimony was not credible). Additionally, the IJ must still
consider the other evidence that an applicant provides to determine whether he has
met his burden. Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005).
The ALJ may make an adverse credibility finding based on observations of
the alien or witness at the hearing, the plausibility of the account, inconsistencies,
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or any inaccuracies or falsehoods, regardless of whether any inconsistencies or
inaccuracies goes to the heart of the claim. INA § 208(b)(1)(B)(iii),
8 U.S.C.
§ 1158(b)(1)(B)(iii). Substantial evidence supports an adverse credibility finding
where omissions in a petitioner’s application are revealed during the petitioner’s
testimony at his merits hearing. See Forgue,
401 F.3d at 1287–88 (holding that
substantial evidence supported the IJ’s adverse credibility finding where the
petitioner omitted relevant political activity from his asylum application).
Although a petitioner “might reasonably decline to list every” instance of
persecution, “his failure to mention any of them supports the IJ’s adverse
credibility finding.” Carrizo v. U.S. Att’y Gen.,
652 F.3d 1326, 1332 (11th Cir.
2011) (holding that substantial evidence supported an adverse credibility finding
where the petitioner’s asylum application omitted alleged detentions to which he
testified). Substantial evidence can support an adverse credibility finding where an
alien fails to provide corroborating evidence that would have rebutted the
inconsistencies or omissions in his testimony. See Xia v. U.S. Att’y Gen.,
608 F.3d
1233, 1240 (11th Cir. 2010) (holding that an adverse-credibility determination was
supported where the applicant’s testimony included one internal inconsistency and
one omission).
Here, we conclude that substantial evidence supports the BIA’s adverse
credibility finding. First, the IJ made a clear credibility finding based on the fact
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that Kumar omitted from his application, and his father and aunt omitted from their
affidavits, that his alleged persecutors went to his father’s and aunt’s houses to look
for him. This was a significant part of his claim, as it bore on his ability to show a
fear of future persecution. Contrary to his assertions, Kumar was given an
opportunity to explain those omissions when the IJ discussed them at the hearing.
Because Kumar did not argue to the BIA that the IJ erred in alternatively
concluding that he had not shown his eligibility for asylum, withholding, or CAT
relief, we dismiss his petition to the extent that he raises that argument. Because
the adverse credibility determination supports the denial of his application, we
deny the remainder.
III. CONCLUSION
For the foregoing reasons, we dismiss Kumar’s petition with respect to his
due-process claims and deny it with respect to his claims as to whether there was
substantial evidence to support the BIA’s determinations. We conclude that Kumar
did not properly exhaust his due-process claims, as is required for us to have
jurisdiction over them, and that there was substantial evidence for each of the
BIA’s determinations.
PETITION DISMISSED IN PART AND DENIED IN PART.
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