Rodriguez v. U.S. Attorney General

355 F. App'x 372
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 8, 2009
DocketNo. 09-11902
StatusPublished

This text of 355 F. App'x 372 (Rodriguez v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez v. U.S. Attorney General, 355 F. App'x 372 (11th Cir. 2009).

Opinion

PER CURIAM:

Petitioners Miguel Antonio Rodriguez Rodriguez and Adriana Patricia Valbuena Arias, and their children, Miguel Angel Rodriguez Valbuena and Juanita Rodriguez Valbuena, seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying their application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the Convention Against Torture (“CAT”). On appeal, they argue that: (1) substantial evidence did not support the IJ’s adverse credibility determination, and, moreover, that the determination violated then* right to due process; and (2) on the merits, the IJ’s denial of asylum was erroneous. After thorough review, we dismiss the petition in part, and deny it in part.

We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.2006). When evaluating a petition for review of an order by the BIA denying an application for asylum and withholding of removal, we review findings of fact under the highly deferential substantial evidence test, and must affirm the decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (quotation omitted). Moreover, we review the record evidence in the light most favorable to the agency’s decision, and may not overturn findings of fact unless the record compels it. Id. at 1286-87. Because credibility determinations constitute factual findings, we review such determinations under the substantial evidence test, and will not substitute our judgment for that of the IJ or BIA. Id. at 1286.

When the BIA issues a separate decision, we review only that decision, “except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id. We, however, will not review the IJ’s decision as to an issue not addressed by the BIA. Instead, if necessary, we must remand the case to give the BIA “the opportunity to address the matter in the first instance in light of its own expertise.” INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

As an initial matter, we lack jurisdiction over the petitioners’ due process claim and over their claim that the IJ erred when he found that Rodriguez was not a victim of past persecution on account of political opinion. We may not review a final order of removal unless “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner fails to exhaust available administrative remedies, we lack jurisdiction to consider the claim. Amaya-Artunduaga, 463 F.3d at 1250. In Amaya-Artunduaga, we held that an alien did not exhaust administrative remedies when he failed to raise his due process claim before the BIA. Id. at 1251.

[374]*374In this case, we do not have jurisdiction to review the petitioners’ due process claim because they failed to exhaust administrative remedies by not raising that claim in their notice of appeal or brief to the BIA. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463 F.3d at 1250-51. We also cannot review their claim that the IJ erred by denying them asylum on the merits, because the BIA did not reach that issue, but simply affirmed the IJ’s adverse credibility determination and reasoned from there. See Ventura, 537 U.S. at 16-17, 123 S.Ct. 353. We therefore dismiss the petition as to these two claims.

We also reject the petitioners’ argument that substantial evidence did not support the IJ’s adverse credibility determination. An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or 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 statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of political opinion or any other protected ground, or (2) a well-founded fear that political opinion or any other protected ground will cause future persecution. 8 C.F.R. § 208.13(a) and (b). To qualify for withholding of removal, an applicant must establish that it is more likely than not that the applicant’s “life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003) (citing 8 U.S.C. § 1231(b)(3)(A)). When a petitioner fails to establish a claim of asylum on the merits, that petitioner “necessarily fails to establish eligibility for withholding of removal.” Forgue, 401 F.3d at 1288 n. 4. This is because the standard for withholding of removal is significantly higher than the asylum standard. See Amaya-Artunduaga, 463 F.3d at 1249 n. 3. If an IJ makes a finding that a petitioner is not entitled to asylum, that IJ is “not obligated to make specific findings with respect to withholding of removal.” Id.

An applicant’s testimony, if credible, may carry that applicant’s burden of proof without corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility determination alone may be sufficient to support the denial of an asylum application.” Forgue, 401 F.3d at 1287. Nevertheless, if an applicant who is not a credible witness produces other evidence of persecution aside from his testimony, the IJ and BIA must consider that evidence. Id.

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Related

Chesnel Forgue v. U.S. Attorney General
401 F.3d 1282 (Eleventh Circuit, 2005)
Feng Chai Yang v. United States Attorney General
418 F.3d 1198 (Eleventh Circuit, 2005)
Jaime Ruiz v. U.S. Attorney General
440 F.3d 1247 (Eleventh Circuit, 2006)
Andres Amaya-Artunduaga v. U.S. Atty. Gen.
463 F.3d 1247 (Eleventh Circuit, 2006)
Immigration & Naturalization Service v. Ventura
537 U.S. 12 (Supreme Court, 2002)

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Bluebook (online)
355 F. App'x 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-us-attorney-general-ca11-2009.