Quinones-Perez v. Ashcroft , 87 F. App'x 335 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60417
Summary Calendar
EMMA PAULINA QUINONES-PEREZ;
RUSBEH BANIHASHEMI; GUIV BANIHASHEMI,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of Orders of the
Board of Immigration Appeals
BIA Nos. A74-856-072
A74-856-073
A74-856-074
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
The petitioners appeal from the Board of Immigration
Appeals’s (BIA) denial of their applications for asylum and
withholding of removal. Petitioners Rusbeh Banihashemi and Guiv
Banihashemi had applied for asylum and withholding of removal as
riders on the application of their mother, Emma Paulina Quinones-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-60417
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Perez (Quinones). Quinones sought asylum based upon spousal
persecution.
Quinones argues that the immigration judge (IJ) erred in
denying her application based upon an adverse credibility
finding. This court generally reviews only BIA decisions;
however, because the BIA adopted the IJ’s credibility finding,
this court reviews the IJ’s finding. See Efe v. Ashcroft,
293 F.3d 899, 903 (5th Cir. 2002). The factual conclusions are
reviewed for substantial evidence. Id. at 903. The substantial
evidence standard requires that the decision be based on the
evidence presented and that the decision be substantially
reasonable. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996). Great deference is afforded to an IJ’s decision regarding
credibility. Efe, 293 F.3d at 903.
The record contains testimony from Quinones’s son and sister
that discredits Quinones’s assertions of spousal abuse. The
information contained in Quinones’s application for asylum and
psycho-social summary is also inconsistent with Quinones’s
testimony at the asylum hearing. From the numerous discrepancies
in Quinones’s testimony and documentary evidence, the IJ’s
decision to deny Quinones’s application based upon an adverse
credibility finding was substantially reasonable. See Carbajal-
Gonzalez, 78 F.3d at 197.
For the first time in her petition for review, Quinones
argues that she received ineffective assistance of counsel and
No. 03-60417
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that she is entitled to relief under the Convention Against
Torture pursuant 8 C.F.R. § 208.16. Because these claims were
not presented before the BIA, this court lacks jurisdiction to
review them. See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir. 2001).
Quinones also argues that she was denied a full and fair
hearing because the IJ precluded her from cross-examining a
witness about Form I-213, “Record of Deportable Alien,” which
Quinones asserts contained impermissible hearsay. Quinones
argues that Form I-213, as well as Form G-170, “Alien Smuggler
Data Import Sheet,” were not properly authenticated. Quinones
concludes that the admission of unreliable evidence violated her
due process rights.
“The rules of evidence, including those that exclude
hearsay, do not govern deportation proceedings.” Olabanji v.
INS, 973 F.2d 1232, 1234 (5th Cir. 1992). Nevertheless,
“immigration judges must conduct deportation hearings in accord
with due process standards of fundamental fairness.” Id. This
court reviews due process claims de novo. Ogbemudia v. INS, 988
F.2d 595, 598 (5th Cir. 1993). “Due process challenges to
deportation proceedings require an initial showing of substantial
prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
Although Quinones raised her objections only to Form I-213
before the BIA, she cannot establish the requisite showing of a
denial of due process as to either admitted document. While the
No. 03-60417
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IJ considered the inconsistencies in these documents, the IJ’s
adverse credibility finding turned upon Quinones’s testimony
at the asylum hearing. Morever, Quinones cannot establish
substantial prejudice because she has not objected to the IJ’s
finding of inconsistency within her own submitted documentary
evidence. See Anwar, 116 F.3d at 144. Accordingly, the petition
for review is DENIED.