Rodolfo Superlano Jimenez v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11814 ELEVENTH CIRCUIT
FEBRUARY 24, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A098-735-425
RODOLFO SUPERLANO JIMENEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 24, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Rodolfo Superlano Jimenez, a native and citizen of Venezuela, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the
Immigration Judge’s (“IJ”) order denying his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”) and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), INA §§ 208, 241; 8
U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c). Superlano Jimenez first argues that
the IJ and BIA erred in finding him not credible because his testimony was truthful
and sufficiently detailed, he was not required to provide corroborating evidence,
and the IJ did not explain its adverse credibility determination. Superlano Jimenez
next argues that the IJ and BIA erred in finding that he was not entitled to asylum,
withholding of removal, or CAT relief, and asserts that he established past
persecution and a well-founded fear of persecution on account of his political
opinion.
As an initial matter, the record below shows that Superlano Jimenez
exhausted his claims as to the adverse credibility determination and denial of
asylum. However, we lack jurisdiction to consider his arguments that he is entitled
to withholding of removal or CAT relief, because he failed to raise those
arguments before the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (stating that we lack jurisdiction to consider a claim
that was not raised before the BIA, even if the BIA reviews the issue sua sponte).
2
When evaluating a petition to review a final order of removal, we review the
BIA’s decision, except to the extent that the BIA expressly adopted the IJ’s
decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Here,
although the BIA did not expressly and specifically adopt the IJ’s decision or
reasoning, insofar as it agreed with the IJ’s findings regarding credibility without
offering further analysis, we review the decisions of both the IJ and the BIA. See
id.We review findings of fact under the “substantial evidence test,” and must
affirm the decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005). Under the highly deferential substantial
evidence test, we consider “only whether there is substantial evidence for the
findings made by the BIA, not whether there is substantial evidence for some other
finding that could have been . . . made.” Adefemi v. Ashcroft, 386 F.3d 1022,
1029 (11th Cir. 2004) (en banc) (emphasis omitted). We review the record
evidence in the light most favorable to the agency’s decision and may not overturn
findings of fact unless the record compels it. Forgue, 401 F.3d at 1286-87. A
credibility determination is a factual finding reviewed under the substantial
evidence test. Id. at 1287.
An alien may qualify for asylum by showing either: (1) past persecution
3
based on a protected ground, or (2) a “well-founded fear” that the alien will be
persecuted based on a protected ground. Zheng v. U.S. Att’y Gen., 451 F.3d 1287,
1290 (11th Cir. 2006). A showing of past persecution creates a presumption of a
“well-founded fear,” subject to rebuttal by the government. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1231 (2005). If he cannot show past persecution, then
the petitioner must demonstrate a well-founded fear of future persecution that is
both subjectively genuine and objectively reasonable. Al Najjar, 257 F.3d at 1289.
This Court has held that persecution is an “extreme concept, requiring more than a
few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Zheng, 451 F.3d at 1290 (quotation
omitted).
The alien carries the burden of showing eligibility for asylum, and must
offer “credible, direct, and specific evidence in the record” to establish eligibility
for asylum. Forgue, 401 F.3d at 1287 (quotation omitted). If the applicant’s
testimony is credible, it alone may be sufficient to satisfy his burden of proof. See
8 C.F.R. § 208.16(b); Forgue, 401 F.3d at 1287. “The weaker an applicant’s
testimony, however, the greater the need for corroborative evidence.” Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). An adverse credibility
determination “does not alleviate the IJ’s duty to consider other evidence produced
by an asylum applicant.” Forgue, 401 F.3d at 1287. However, if the IJ makes an
4
adverse credibility determination, and the applicant produces no other
corroborating evidence, the IJ can deny the applicant relief from removal solely on
the basis of that determination. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-
31 (11th Cir. 2006).1
An adverse credibility determination is made when the IJ or BIA states
explicitly that the applicant’s testimony was not credible, and provides specific,
cogent reasons for this finding. See Yang, 418 F.3d at 1201 (noting that the IJ
must make a “clean” credibility finding). Once an adverse credibility finding is
made, the applicant has the burden to show that “the IJ’s credibility decision was
not supported by specific, cogent reasons or was not based on substantial
evidence.” Forgue, 401 F.3d at 1287 (quotation omitted).
Substantial evidence supports the IJ’s and BIA’s adverse credibility finding
because (1) the IJ and BIA made an explicit determination of adverse credibility;
(2) the IJ gave specific and cogent reasons for his credibility determination;
(3) Superlano Jimenez’s testimony and asylum application were vague; and (4) he
1
The REAL ID Act of 2005 provides that an adverse credibility determination may be
based on inconsistencies that do not go “to the heart of the applicant’s claim.” See Pub. L. No.
109-13, § 101(a)(3), (d)(4)(C), 119 Stat. 231, 303, 305 (codified at 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C). Because Superlano Jimenez’s application was filed
before these amendments became effective on May 11, 2005, they do not apply to his claims.
Nonetheless, we need not resolve whether adverse credibility determinations in pre-REAL ID
Act cases must be based on inconsistencies that go to the heart of the claim because the
inconsistencies identified by the IJ and the BIA in this case relate directly to Superlano
Jimenez’s claims of persecution.
5
did not produce any evidence that corroborated his claims. Thus, the record does
not compel us to reverse the IJ’s and BIA’s adverse credibility determination.
Substantial evidence also supports the IJ’s and BIA’s finding that Superlano
Jimenez failed to show past persecution or a well-founded fear of persecution
based on a protected ground, and he has failed to point to any evidence that
compels a reversal of that finding. Accordingly, we deny Superlano Jimenez’s
petition for review as to the adverse credibility determination and denial of asylum.
Because Superlano Jimenez failed to raise his claims of withholding of
removal and CAT relief before the BIA, and thus failed to exhaust his
administrative remedies, we lack jurisdiction to review those claims. Accordingly,
we dismiss Superlano Jimenez’s petition as to his withholding of removal and
CAT relief claims.
PETITION DENIED IN PART, DISMISSED IN PART.
6