Milvia Aguilar v. U.S. Attorney General , 381 F. App'x 924 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14367 JUNE 4, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A098-661-562
MILVIA AGUILAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 4, 2010)
Before MARCUS, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Milvia Aguilar, through counsel, seeks review of the Board of Immigration
Appeals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”) adverse
credibility determination and corresponding denial of her application for asylum
under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158; withholding
of removal under 8 U.S.C. § 1231(b)(3); and withholding of removal under the
United Nations Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). On
appeal, Aguilar argues that the BIA’s adverse credibility determination was
erroneous, that she is entitled to asylum, withholding of removal, and CAT relief,
and that the BIA’s application of the law deprived her of her due process rights.
After careful review, we dismiss the petition in part, and deny it in part.
We review the BIA’s decision as the final judgment, except to the extent that
it expressly adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt the IJ’s
decision, based its adverse credibility finding on specific grounds, and declined to
address the IJ’s other finding. Accordingly, only the BIA’s decision is subject to
our review. See id.
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). The BIA’s factual
determinations, including credibility and asylum eligibility determinations, are
reviewed under the “substantial evidence test.” Al Najjar, 257 F.3d at 1284;
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). We will
affirm the BIA’s decision if it is supported by reasonable, substantial, and
probative evidence of record. Al Najjar, 257 F.3d at 1284. This standard is
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“highly deferential,” and we have held that the BIA’s decision can be reversed only
“if the evidence compels a reasonable fact finder to find otherwise.” Al Najjar,
257 F.3d at 1284; Kueviakoe, 567 F.3d at 1304 (quotations omitted). Under this
test, we “view the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158. The Secretary of Homeland Security or the Attorney
General may grant asylum to an alien if she meets the INA’s definition of a
“refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:
[A]ny person who is outside any country of such person’s nationality
. . . who is unable or unwilling to return to, and is unable or unwilling
to avail . . . herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion . . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
that she qualifies as a refugee. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818
(11th Cir. 2004).
An alien is entitled to withholding of removal under the INA if she can show
that her life or freedom would be threatened on account of, inter alia, her political
opinion. 8 U.S.C. § 1231(b)(3); Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860-61
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(11th Cir. 2007). The alien must demonstrate that, more likely than not, she will
be persecuted or tortured upon her removal. Delgado, 487 F.3d at 861. The
standard for withholding of removal is more stringent than that required for
asylum. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006).
Accordingly, where a petitioner fails to establish a claim of asylum on the merits,
her claim for withholding of removal necessarily will fail. See id.
If an alien’s testimony is credible, it alone may be sufficient to satisfy her
burden of proof required to establish asylum eligibility. See Kueviakoe, 567 F.3d
at 1304. However, a denial of asylum relief can be supported solely by an adverse
credibility determination. Id. at 1304-05. The BIA must support an adverse
credibility determination with “specific, cogent reasons,” for the finding. Id. at
1305. The burden then shifts to the alien to show that the credibility determination
was not supported by “specific, cogent reasons” or was not based on substantial
evidence. Id. The trier-of-fact must determine credibility, and we will not
substitute our own judgment for that of the BIA with respect to credibility findings.
D-Muhumed, 388 F.3d at 818.
The REAL ID Act provides that an IJ may base a credibility determination
on, inter alia:
the consistency between the applicant’s . . . written and oral
statements (whenever made and whether or not under oath, and
considering the circumstances under which the statements were made)
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. . . the consistency of such statements with other evidence of record . .
. and any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). Because Aguilar filed her application after May 11,
2005, the REAL ID Act applies to her claim. See Shkambi v. U.S. Att’y Gen., 584
F.3d 1041, 1049 n.7 (11th Cir. 2009). Contradictions between an alien’s testimony
at an asylum hearing and her statements made during an interview upon entry in
the United States may constitute bases for an adverse credibility determination.
See id. at 1050-51 (holding that the IJ did not err by considering contradictions
between an applicant’s airport interview and her later testimony). In contrast, mere
omissions in the initial interview, upon which the alien later elaborates, should not
solely be used to support an adverse credibility finding. See Tang v. U.S. Att’y
Gen., 578 F.3d 1270, 1279 (11th Cir. 2009).
We “lack jurisdiction to consider a claim raised in a petition for review
unless the petitioner has exhausted [her] administrative remedies with respect
thereto.” Amaya-Artunduaga, 463 F.3d at 1250; 8 U.S.C. § 1252(d)(1). Therefore,
if an alien fails to present a claim before the BIA, generally we will not address it.
See Shkambi, 584 F.3d at 1048 n.4 (declining to address an alien’s claim that was
not first presented to the BIA).
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As an initial matter, Aguilar failed to exhaust her administrative remedies
with respect to her claim for CAT relief. She did not present the issue to the BIA
in either her notice of appeal or subsequent brief. Likewise, to the extent that
Aguilar raises a due process argument before us, she does so for the first time on
appeal, as she did not raise such an argument before the BIA. Because Aguilar
failed to exhaust her administrative remedies with respect to both of these
arguments, we lack jurisdiction to address them. See Amaya-Artunduaga, 463
F.3d at 1250; 8 U.S.C. § 1252(d)(1).
We also reject Aguilar’s claim that the evidence of record compels us to
overturn the BIA’s adverse credibility determination or the resulting denial of
asylum or withholding of removal. The BIA supported its credibility findings by
identifying specific, cogent inconsistencies between the evidence and Aguilar’s
testimony, including specific differences between her testimony at the asylum
hearing and her earlier statements to immigration officials. Kueviakoe, 567 F.3d at
1305. Indeed, in her hearing testimony, Aguilar repeatedly denied telling INS or
Border Patrol officials that she did not fear persecution if returned to Venezuela
and claimed to have entered the United States because she feared persecution in
Venezuela, but in her initial February 2006 interview with Border Patrol agents,
Aguilar stated under oath that she had no fear of returning to Venezuela, and that
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she entered the United States to work in Miami, Florida. Even Aguilar concedes
that there were discrepancies between her testimony and her earlier statements.
Unlike the petitioner in Tang, Aguilar’s hearing testimony was not an
elaboration or clarification of an earlier statement. Cf. Tang, 578 F.3d at 1279-80.
Rather, Aguilar directly contradicted her earlier statements that she was unafraid to
return to Venezuela by testifying that she came to the United States to avoid
persecution. Such contradictions constitute substantial evidence in support the
BIA’s adverse credibility determination, and Aguilar’s conclusory argument to the
contrary is not a sufficient basis on which to reverse the BIA’s conclusion. See
Shkambi, 584 F.3d at 1050-51; Kueviakoe, 567 F.3d at 1305. Although Aguilar
argues that the statements she made before INS and Border Patrol agents are
unreliable, she offers no evidence to support this conclusion. The record does not
suggest that the BIA failed to consider the circumstances or reliability of Aguilar’s
prior interviews, as required by the REAL ID Act. See 8 U.S.C. §
1158(b)(1)(B)(iii). And to the extent that Aguilar argues that the inconsistencies
could not support the adverse credibility determination because they were trivial or
unimportant, her argument is foreclosed by the REAL ID Act, which does not
require that inconsistencies go to the heart of an applicant’s claim. See id.
Thus, viewed most favorably to the agency decision, and in light of the
BIA’s permissible adverse credibility determination, substantial evidence supports
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the BIA’s dismissal of Aguilar’s application for asylum. See Adefemi, 386 F.3d at
1027. Because Aguilar has not established that she is entitled to asylum, she is
unable to meet the stricter standard for withholding of removal. See Zheng, 451
F.3d at 1292. Therefore, we dismiss in part and deny in part Aguilar’s petition for
review.
PETITION DISMISSED IN PART, DENIED IN PART.
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