Juan David Duque-Suarez v. U.S. Atty. General , 274 F. App'x 770 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 18, 2008
Nos. 07-11907 THOMAS K. KAHN
07-14153 CLERK
Non-Argument Calendar
________________________
Agency No. A97-949-938
JUAN DAVID DUQUE-SUAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 18, 2008)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
This is Juan David Duque-Suarez’s appeal from the Board of Immigration
Appeals’ order affirming the immigration judge’s denial of his application for
asylum and withholding of removal, as well as from the BIA’s denials of his
separate motions to remand his case and to reconsider its earlier decision.
Duque-Suarez is a Colombian native and citizen who arrived in the United
States in 2004 seeking asylum. Upon entry into this country, he was immediately
detained, but was paroled until his removal proceeding could take place. Before
his removal hearing, he married a United States citizen, who filed a family-based
visa petition on his behalf. Duque-Suarez moved to continue his removal hearing
to allow United States Citizenship and Immigration Services to review the visa
petition. The IJ denied that motion and also denied his application for asylum.
Duque-Suarez appealed to the BIA, which dismissed the appeal and denied his
motions for remand and reconsideration.
I.
Duque-Suarez first contends that the BIA erred in affirming the IJ’s adverse
credibility determination on the ground that the evidence in the record compelled a
finding that his testimony was credible, and that it was sufficient to support a
finding of past persecution or a well-founded fear of future persecution. 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
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(11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review
the IJ’s decision as well.” Id. Here, the BIA did not expressly adopt the IJ’s
reasoning, although it did rely on the IJ’s adverse credibility determination.
Accordingly, we will review the BIA’s decision, but also will review the IJ’s
adverse credibility finding.
“To the extent that the BIA’s decision was based on a legal determination,
[our] review is de novo.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814,
817 (11th Cir. 2004). The BIA’s factual determinations are reviewed under the
substantial evidence test, and we must affirm the BIA’s decisions that are
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar, 257 F.3d at 1284 (internal quotation marks
omitted). The substantial evidence test is “deferential” and does not allow
“re-weigh[ing] the evidence from scratch.” Mazariegos v. United States Att’y
Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (internal quotation marks omitted).
“To reverse the . . . 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).
An alien may receive asylum if he can carry the burden of proving that he is
a “refugee,” which is defined as “any person who is outside any country of such
person’s nationality . . . and who is unable or unwilling to return to, and is unable
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or unwilling to avail [himself] . . . 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.”
Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)
(quoting 8 U.S.C. § 1101(a)(42)(A)). “A showing of past persecution creates a
presumption of a ‘well-founded fear,’ subject to rebuttal by the [government].” Id.
at 1231. If an alien does not establish past persecution, he bears the burden of
showing that it is more likely than not that he will suffer persecution on the basis
of a protected ground, and he would not be able to avoid persecution by relocating
to another part of his country. 8 C.F.R. § 208.16(b)(2).
Withholding of removal may be granted if the alien establishes that, if
returned to his country, his life or freedom would be threatened on account of his
race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3). Where a claimant fails to establish eligibility for
asylum, which carries a lower burden of proof than for withholding of removal, he
likewise fails to establish eligibility for this other form of relief. See Al Najjar,
257 F.3d at 1293.
We have held that the IJ must “determine credibility, and we may not
substitute our judgment for that of the IJ with respect to credibility findings.”
Yang v. United States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Thus, we
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will defer to the IJ’s credibility finding as we would to any factfinding, unless the
evidence compels us to do otherwise. Id. Credible testimony of the applicant
“may be sufficient to sustain the applicant’s burden without corroboration.” D-
Muhumed, 388 F.3d at 818–19. “The weaker an applicant’s testimony, however,
the greater the need for corroborative evidence.” Yang, 418 F.3d at 1201. Because
applicants have the burden to establish eligibility for asylum, an adverse credibility
determination alone may be sufficient to support an IJ’s decision to deny an
application for asylum, particularly where there is no other evidence of
persecution. Forgue v. United States Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005). Once the IJ makes an adverse credibility determination, the burden shifts to
the applicant to show that the determination was “not supported by specific, cogent
reasons or was not based on substantial evidence.” Chen v. United States Att’y
Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (internal quotation marks omitted).
Here, the IJ made an adverse credibility determination based on omissions
and inconsistencies in Duque-Suarez’s testimony. Specifically, the IJ noted that
there were significant omissions from the initial sworn statement Duque-Suarez
gave upon entry into the United States. The IJ also found that his inability to
remember the full name of a friend he claims was murdered by Colombian
guerillas cast doubt on his credibility. On the basis of that adverse credibility
determination, the BIA properly concluded that the IJ’s determination was not
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clearly erroneous, and that Duque-Suarez did not establish his eligibility for
asylum or withholding of removal. Forgue, 401 F.3d at 1287.
II.
A.
Duque also contends that, although the BIA and IJ may have lacked
jurisdiction over his adjustment application stemming from his marriage to an
American citizen, the BIA still had jurisdiction to grant his motion for remand or to
continue the case until the USCIS acted on his adjustment application.
We review the BIA’s denial of Duque-Suarez’s motion for remand under
these circumstances only for an abuse of discretion. See generally Al Najjar, 257
F.3d at 1301 (stating that where a motion to remand seeks to reopen proceedings
we review the BIA’s disposition of that motion for an abuse of discretion); Bull v.
INS, 790 F.2d 869, 869 (11th Cir. 1986) (noting that we review the BIA’s decision
to grant a continuance for an abuse of discretion).
Under the rule which was in effect when Duque-Suarez’s motion to remand
was being considered, the USCIS had exclusive jurisdiction over all adjustment of
status applications for arriving aliens in removal proceedings, with one narrow
exception that is not relevant to this appeal. See 8 C.F.R. § 1245.2(a)(1) (2003).1
1
On May 12, 2006, regulations that prohibited arriving aliens in removal proceedings
from adjusting status were deleted, and an interim rule clarified the eligibility of arriving aliens
to have their adjustment applications considered while in removal proceedings. See 8 C.F.R. §
6Duque-Suarez’s motion to remand clearly requested that the BIA reopen his
case and remand it to the IJ so that he could have the “opportunity to apply” for an
adjustment of status before the IJ. The BIA correctly determined that Duque-
Suarez was not eligible to apply for adjustment of status in removal proceedings
because the USCIS had exclusive jurisdiction over adjustment applications filed by
arriving aliens. See 8 C.F.R. § 1245.2(a)(1) (2003). Accordingly, the appropriate
course of action for Duque-Suarez was to file an application for adjustment of
status with the USCIS, which he already had done, and wait for this application to
be adjudicated, independent of his removal proceedings. Therefore, the BIA did
not abuse its discretion in denying his motion for remand.
B.
Duque-Suarez’s final contention is that the BIA abused its discretion in
denying his motion for reconsideration. We review the BIA’s denial of that
motion only for an abuse of discretion. Assa’ad v. United States Att’y Gen., 332
F.3d 1321, 1340–41 (11th Cir. 2003). The BIA did not abuse its discretion
because Duque-Suarez did not specify any errors of law or fact in the BIA’s
previous order, and he attempted to raise issues that could have, and should have,
been raised in his initial motion to remand. See 8 U.S.C. § 1229a(c)(6)(C) (“The
motion [for reconsideration] shall specify the errors of law or fact in the previous
1245.2(a)(1) (2003); cf. 8 C.F.R. § 1245.2(a)(1) (2006).
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order and shall be supported by pertinent authority.”). It was not an abuse of
discretion for the BIA to reject arguments raised for the first time in a motion for
reconsideration where those arguments could have been raised earlier.
PETITIONS DENIED.
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