Anil Kumar v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 24, 2020
• Docket: 19-13170
• Status: Unpublished

Opinion

Case: 19-13170 Date Filed: 06/24/2020 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13170 Non-Argument Calendar ________________________

Agency No. A215-813-676

ANIL KUMAR,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(June 24, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-13170 Date Filed: 06/24/2020 Page: 2 of 8

Anil Kumar seeks review of the final order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application

for asylum, withholding of removal, and deferral of removal under the Convention

Against Torture (“CAT”). On appeal, Kumar raises two arguments: (1) the IJ

violated his due process rights, and (2) substantial evidence does not support the

adverse credibility determination or the determinations that he was not eligible for

asylum, withholding of removal, or CAT relief.

After careful review, we dismiss Kumar’s petition in part and deny it in part.

With respect to the due process arguments, we conclude that Kumar has not

properly exhausted those claims and, as a result, we do not have jurisdiction to

hear them. And with respect to the second issue, we conclude that substantial

evidence supported each of the BIA’s determinations.

He argues that the IJ violated his due process rights by (1) incorrectly

advising him of the allegations in the notice to appear (“NTA”) and charges of

removability and (2) not designating a country for removal. He also argues that

substantial evidence does not support the adverse credibility determination or the

determinations that he was not eligible for asylum, withholding of removal, or CAT

relief.

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I. DUE PROCESS VIOLATIONS

Kumar first argues that the IJ violated his due process rights by

(1) incorrectly advising him of the allegations in the notice to appear (“NTA”) and

charges of removability and (2) not designating a country for removal. We review

only the decision of the BIA, 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). Where

the BIA agrees with the IJ’s reasoning, we will also review the IJ’s decision to that

extent. Id.

We review due process claims de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d

1138, 1143 (11th Cir. 2010). We also review jurisdictional issues de novo and have

an independent obligation to determine that we have jurisdiction to hear claims

presented to us. Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012).

For us to exercise jurisdiction over a petition for review in an immigration case, an

alien seeking relief must exhaust the administrative remedies available to him prior

to obtaining judicial review. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1);

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006).

The purpose of the exhaustion doctrine is to provide the agency with a full

opportunity to consider an alien’s claims for relief and compile an adequate record

for judicial review. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016).

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We lack jurisdiction over unexhausted claims, even if the BIA addressed them sua

sponte. Amaya-Artunduaga, 463 F.3d at 1250–51.

To exhaust his available remedies, the petitioner must present all claims to

the BIA. Jeune, 810 F.3d at 800. “This is not a stringent requirement. Simply put,

the alien must have previously argued the core issue now on appeal before the

BIA.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015)

(quotation omitted). The petitioner also must “set out any discrete arguments he

relies on in support of that claim.” Jeune, 810 F.3d at 800. There is no obligation

to use precise legal terminology or provide particularly developed arguments in

support of a claim. Id. However, “[u]nadorned, conclusory statements do not

satisfy this requirement, and the petitioner must do more than make a passing

reference to the issue.” Id. (quotation omitted). “[I]t is not enough that the

petitioner has merely identified an issue to [the BIA].” Id. “Unless a petitioner

raises a purely legal question, the BIA cannot review and correct errors without the

petitioner first providing [his] argument’s relevant factual underpinnings.”

Indrawati, 779 F.3d at 1298.

Here, we conclude that Kumar did not exhaust his due process arguments.

In his brief before the BIA, he did not argue that IJ’s failure to follow procedural

regulations alone required reversal or that the IJ did not properly advise him of the

charges of removal, and he only asserted that the IJ violated due process by failing

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to designate a country for removal in a passing statement in the procedural history

section of his brief. That thin statement, “[u]nadorned” by any indication that it

was raising a major issue, was plainly insufficient under our precedent to exhaust

his due process claims. Accordingly, we dismiss those arguments for lack of

jurisdiction.

II. SUBSTANTIAL EVIDENCE

Second, Kumar argues that substantial evidence did not support the BIA’s

adverse credibility determination or its determinations of his ineligibility for

asylum, withholding of removal, or CAT relief. When reviewing the BIA’s

decision, we review legal questions de novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703

F.3d 1303, 1307 (11th Cir. 2013). Factual determinations are reviewed under the

substantial-evidence test, which requires us to view the record in the light most

favorable to the agency’s decision and draw all reasonable inferences in its favor.

Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). We must

affirm the BIA’s decision if, considering the record as a whole, “it is supported by

reasonable, substantial, and probative evidence.” Id. at 1027 (quotation omitted).

To reverse administrative factual findings, we must determine that the record

“compels” reversal, not merely that it supports a different conclusion. Id.

We first address Kumar’s argument relating to the BIA’s adverse credibility

determination. As a threshold matter, we note that credibility determination is a

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factual finding that we review under the substantial evidence test. Ruiz v. U.S.

Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). In that respect, “we may not

substitute [our] judgment for that of the [IJ] with respect to credibility findings.”

Id. (quotation omitted, alterations in original).

The IJ must support an adverse credibility determination with “specific,

cogent reasons” for that determination. Id. The burden then shifts to the petitioner

to show that the determination “was not supported by specific, cogent reasons or

was not based on substantial evidence.” Id. (quotation and alteration omitted). A

credibility determination alone can be sufficient to support the denial of an asylum

application. Id. However, if the IJ does not expressly find a petitioner’s testimony

to be credible, an adverse credibility finding will not be implied. See Yang v. U.S.

Atty. Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (assuming “that any credibility

determinations by the IJ were not dispositive of the appeal” where the IJ only

called the claims a “ridiculous fabrication” and the alien’s testimony “extremely

inconsistent and [making] absolutely no sense whatsoever” but did not make an

explicit finding that the testimony was not credible). Additionally, the IJ must still

consider the other evidence that an applicant provides to determine whether he has

met his burden. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).

The ALJ may make an adverse credibility finding based on observations of

the alien or witness at the hearing, the plausibility of the account, inconsistencies,

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or any inaccuracies or falsehoods, regardless of whether any inconsistencies or

inaccuracies goes to the heart of the claim. INA § 208(b)(1)(B)(iii), 8 U.S.C.

§ 1158(b)(1)(B)(iii). Substantial evidence supports an adverse credibility finding

where omissions in a petitioner’s application are revealed during the petitioner’s

testimony at his merits hearing. See Forgue, 401 F.3d at 1287–88 (holding that

substantial evidence supported the IJ’s adverse credibility finding where the

petitioner omitted relevant political activity from his asylum application).

Although a petitioner “might reasonably decline to list every” instance of

persecution, “his failure to mention any of them supports the IJ’s adverse

credibility finding.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir.

2011) (holding that substantial evidence supported an adverse credibility finding

where the petitioner’s asylum application omitted alleged detentions to which he

testified). Substantial evidence can support an adverse credibility finding where an

alien fails to provide corroborating evidence that would have rebutted the

inconsistencies or omissions in his testimony. See Xia v. U.S. Att’y Gen., 608 F.3d

1233, 1240 (11th Cir. 2010) (holding that an adverse-credibility determination was

supported where the applicant’s testimony included one internal inconsistency and

one omission).

Here, we conclude that substantial evidence supports the BIA’s adverse

credibility finding. First, the IJ made a clear credibility finding based on the fact

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that Kumar omitted from his application, and his father and aunt omitted from their

affidavits, that his alleged persecutors went to his father’s and aunt’s houses to look

for him. This was a significant part of his claim, as it bore on his ability to show a

fear of future persecution. Contrary to his assertions, Kumar was given an

opportunity to explain those omissions when the IJ discussed them at the hearing.

Because Kumar did not argue to the BIA that the IJ erred in alternatively

concluding that he had not shown his eligibility for asylum, withholding, or CAT

relief, we dismiss his petition to the extent that he raises that argument. Because

the adverse credibility determination supports the denial of his application, we

deny the remainder.

III. CONCLUSION

For the foregoing reasons, we dismiss Kumar’s petition with respect to his

due-process claims and deny it with respect to his claims as to whether there was

substantial evidence to support the BIA’s determinations. We conclude that Kumar

did not properly exhaust his due-process claims, as is required for us to have

jurisdiction over them, and that there was substantial evidence for each of the

BIA’s determinations.

PETITION DISMISSED IN PART AND DENIED IN PART.