Erick Bertrand v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 24, 2008
THOMAS K. KAHN
No. 07-13485
CLERK
Non-Argument Calendar
________________________
BIA Nos. A79-489-664 & A93-411-188
ERICK BERTRAND,
MIMOSE JEAN-JACQUES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 24, 2008)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Erick Bertrand, a native and citizen of Haiti proceeding pro se, seeks review
of the final order of the Board of Immigration Appeals affirming the Immigration
Judge’s order of removal. Bertrand’s application is on behalf of himself and his
wife, Mimose Jean Jacques. Bertrand contends that the BIA erred by finding that
he did not satisfy his claim for political asylum, withholding of removal, and relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment. The government responds that: (1) this
Court does not have jurisdiction over Bertrand’s appeal because he failed to
exhaust his administrative remedies, and therefore his petition should be dismissed;
and (2) the IJ’s finding that Bertrand’s testimony lacked credibility was supported
by substantial evidence.
We lack jurisdiction to consider a claim raised in a petition for review unless
the petitioner has exhausted his administrative remedies. See 8 U.S.C. §
1252(d)(1); see also Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)
(explaining that the exhaustion requirement is jurisdictional, such that we “lack
jurisdiction to consider claims that have not been raised before the BIA”). The
government’s contention that Bertrand failed to exhaust his administrative
remedies is based on the proposition that because he failed to argue against the IJ’s
adverse credibility finding to the BIA, he failed to exhaust his administrative
remedies. If the government’s proposition were correct, its contention would be
also; but it’s not.
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In order to properly raise an issue before the BIA, the petitioner must
mention the issue and discuss its merits or his basis for contending that the IJ’s
decision of it is wrong. See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.
2006) (holding that where the petitioner failed to present the issue and discuss the
merits of his claim or the basis for the IJ’s decision during his appeal to the BIA,
he had not exhausted his administrative remedies). Bertrand did state in his request
for review to the BIA that he was seeking to challenge the IJ’s adverse credibility
finding, and he argued that the record did not support that credibility finding.
Because that is enough to exhaust his administrative remedies for that issue, we do
have jurisdiction to decide this appeal.
Bertrand contends that the BIA erred by finding that he did not satisfy his
claim for political asylum, withholding of removal, and relief under the United
Nations Convention Against Torture because his testimony established that he had
suffered past persecution and had a well-founded fear of future persecution if he
returned to Haiti. When the BIA issues a decision, we review only that decision,
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). In the record before us, the BIA
adopted and affirmed the IJ’s decision with regard to Bertrand’s credibility, and
then went on to discuss Bertrand’s claim that he had met his burden of proof to
establish eligibility for asylum, withholding of removal, and relief under the
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Convention Against Torture. Because the BIA provided additional analysis, we
review its decision as well as the IJ’s.
We review the factual determinations of the IJ and the BIA under the
substantial evidence test, and we “affirm the [IJ’s and] BIA’s decision[s] if [they
are] supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (internal quotation marks and citation omitted). The
substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. Office of United States Att’y Gen., 241
F.3d 1320, 1323 (11th Cir. 2001) (citation omitted). “To reverse the IJ’s [and
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) (considering withholding of removal claim). The fact that evidence in the
record may also support a conclusion contrary to the administrative findings is not
enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.
2004) (en banc). We review the record evidence in the light most favorable to the
IJ’s and BIA’s decisions and draw all reasonable inferences in favor of those
decisions. Id.“To establish asylum eligibility based on political opinion or any other
protected ground, the alien must, with credible evidence, establish (1) past
persecution on account of [his] political opinion or any other protected ground, or
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(2) a ‘well-founded fear’ that [his] political opinion or any other protected ground
will cause future persecution.” Sepulveda v. United States Att’y Gen., 401 F.3d
1226, 1230–31 (11th Cir. 2005). “To establish asylum based on past persecution,
the applicant must prove (1) that [he] was persecuted, and (2) that the persecution
was on account of a protected ground. To establish eligibility for asylum based on
a well-founded fear of future persecution, the applicant must prove (1) a
‘subjectively genuine and objectively reasonable’ fear of persecution, that is (2) on
account of a protected ground.” Silva v. United States Att’y Gen., 448 F.3d 1229,
1236 (11th Cir. 2006) (citations omitted).
A request for withholding of removal requires that an alien show that his life
or freedom would more likely than not be threatened in his country of origin on
account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3); Sepulveda, 401 F.3d at 1232. Where a
petitioner fails to establish eligibility for asylum, which carries a lower burden of
proof than for withholding of removal, he also fails to establish eligibility for this
other form of relief. See Al Najjar, 257 F.3d at 1293. Furthermore, like the burden
of proof for an applicant seeking withholding of removal, the burden of proof for
an applicant seeking relief under the Convention Against Torture is higher than the
burden imposed on an asylum applicant. Id. at 1303.
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“[A]n adverse credibility determination alone may be sufficient to support
the denial of an asylum application” when there is no evidence of persecution other
than the applicant’s statements. Forgue v. United States Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005). However, an adverse credibility determination does
not alleviate the IJ’s duty to consider other evidence produced by the asylum
applicant. Id. “The weaker the applicant’s testimony, . . . the greater the need for
corroborative evidence.” Yang v. United States Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005). Although minor inconsistencies that are immaterial will not
support an adverse credibility finding, inconsistencies about material matters will.
Nreka v. United States Att’y Gen., 408 F.3d 1361, 1369 (11th Cir. 2005).
The IJ’s adverse credibility finding was supported by substantial evidence.
Bertrand testified that he lived in the United States from 1996 through 1999 and
then returned to Haiti. The crucial part of his testimony was that from July to
September 2000 he was in Haiti where he was persecuted by supporters of the
Lavalas political group because of his membership in a political organization. As a
result of that persecution, Bertrand testified, he fled back to the United States in
October 2000. However, the government presented evidence that Bertrand was
issued a Florida drivers license in August 2000 and was listed at a Florida address
in September 2000, strongly suggesting that Bertrand was not present in Haiti
during the time he said he was persecuted. Bertrand failed to produce any
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evidence that he was in Haiti in July through September 2000, and he failed to
adequately explain the existence of the drivers license issued on August 23, 2000.
These inconsistencies, which went to the very basis of Bertrand’s asylum claim,
gave the IJ sufficient reason to disbelieve Bertrand’s testimony. See Nreka, 408
F.3d at 1369. Accordingly, the IJ’s adverse credibility finding was supported by
substantial evidence.
Because the IJ’s adverse credibility finding was supported by substantial
evidence, and Bertrand failed to provide any additional evidence to support his
claim for asylum, the BIA’s decision that Bertrand had failed to establish eligibility
for asylum was also supported by substantial evidence. See Mendoza, 327 F.3d at
1287. Moreover, because Bertrand did not establish eligibility for asylum, which
carries a lower burden of proof than the withholding of removal and relief under
the Convention Against Torture, these claims fail as well. See Al Najjar, 257 F.3d
at 1293, 1303.
PETITION DENIED.
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