Gerardo Diaz-Cardenas v. U.S. Attorney General , 363 F. App'x 720 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12603 ELEVENTH CIRCUIT
FEBRUARY 1, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
Agency Nos. A095-262-712, A095-262-713
GERARDO DIAZ-CARDENAS,
GERARDO ANDRES DIAZ-NAVAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 1, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Gerardo Diaz-Cardenas petitions for review of the denial of his application
for asylum and withholding of removal under the Immigration and Nationality Act
and relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, and Degrading Treatment or Punishment. INA § 241(b)(3), 8 U.S.C. §
1231(b)(3); 8 C.F.R. § 208.16(c). Both the Board of Immigration Appeals and
immigration judge denied the application based on a finding that Diaz-Cardenas
was not credible. We deny the petition.
Diaz-Cardenas presents two arguments, but we lack jurisdiction to consider
one of those arguments. Diaz-Cardenas argues that he was denied a fair hearing
because the asylum office failed timely to transfer his supporting documents for his
removal hearing and he was denied an opportunity to explain discrepancies
between some of those documents and his testimony. Diaz-Cardenas did not
present that argument to the Board, and “absent a cognizable excuse or exception,
‘we lack jurisdiction to consider claims that have not been raised before the
[Board].’” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006).
Diaz-Cardenas also argues that the adverse credibility finding is not
supported by substantial evidence, but we disagree. See Al Najjar v. Ashcroft, 257
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F.3d 1262, 1283–84 (11th Cir. 2001). The Board and immigration judge provided
specific and cogent reasons to support that finding. Shkambi v. U.S. Att’y Gen.,
584 F.3d 1041, 1048 (11th Cir. 2009). There were numerous inconsistencies
between Diaz-Cardenas’s application, his testimony at the removal hearing, and his
supporting documents. Diaz-Cardenas initially stated in his application that he
organized youth sports events for Major Ricardo Gomez Marin beginning in 1998,
but Diaz-Cardenas later testified that he worked for Gomez in 1996 and again in
1998. Diaz-Cardenas initially stated in his application that in July 2001 he was
threatened by several members of the National Liberation Party, but he later
testified he was threatened by only one individual. Diaz-Cardenas testified that he
was the intended target of a shooting on December 7, 2001, but a letter submitted
by Gomez stated that the shooting occurred on July 7, 2001. Diaz-Cardenas also
testified incredibly that a letter from Major Jose Antonio Pereira Sanchez dated
November 3, 2001, was written after the shooting and backdated at Diaz-
Cardenas’s request. Although Diaz-Cardenas blamed the National Liberation Party
for his persecution, Gomez and other officials who submitted letters on behalf of
Diaz-Cardenas attributed the persecution to “outlaw groups.” Diaz-Cardenas
offers no explanation for his inconsistencies that would “‘compel’ a reasonable fact
finder” to reverse the adverse credibility finding and conclude that he established
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eligibility for asylum and withholding of removal. Chen v. U.S. Att'y Gen., 463
F.3d 1228, 1233 (11th Cir. 2006).
Diaz-Cardenas’s petition for review is DENIED.
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