[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10564 ELEVENTH CIRCUIT
FEBRUARY 23, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A094-882-811
RUDY GONZALO SOLIS-AILON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 23, 2011)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Rudy Gonzalo Solis-Ailon, a native and citizen of Guatemala
proceeding pro se, petitions for review of the order by the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”). The IJ’s
decision denied asylum and withholding of removal.1 No reversible error has been
shown; we dismiss the petition in part and deny it in part.
On appeal, Petitioner argues that he demonstrated extraordinary
circumstances sufficient to overcome his failure to file his asylum application
within one year of arriving in the United States.2 But, as the government notes
correctly, we lack jurisdiction over this claim. See Chacon-Botero v. U.S.
Attorney General, 427 F.3d 954, 957 (11th Cir. 2005) (explaining that we lack
jurisdiction, under 8 U.S.C. § 1158(a)(3), to review an IJ’s untimeliness ruling).
So, we dismiss the petition for review on asylum.
Petitioner also challenges the IJ’s adverse credibility determination. But in
his notice of appeal to the BIA, Petitioner did not mention the IJ’s adverse
1
Petitioner raises no challenge to the portion of IJ’s decision denying relief under the
Convention Against Torture; so, that issue is abandoned. See Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Petitioner arrived in the United States in March 2004 but did not file his asylum
application until July 2006.
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credibility determination; and Petitioner filed no brief before the BIA. See Alim v.
Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006) (to raise properly a claim before
the BIA, petitioner must mention the issue in his brief and must discuss its merits,
or at least contest the basis for the IJ’s decision). Even though the BIA addressed
the adverse credibility determination sua sponte, we lack jurisdiction to consider
Petitioner’s present challenge because he did not exhaust his administrative
remedies on it. See Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247,
1250-51 (11th Cir. 2004) (explaining that we lack jurisdiction to consider a claim
that an applicant did not raise before the BIA -- even if the BIA sua sponte
addressed the claim -- because the applicant did not exhaust administrative
remedies). We dismiss the petition for review on the adverse credibility
determination.
We have jurisdiction only over the IJ’s and BIA’s conclusion that Petitioner
otherwise had not met his burden of proof for withholding of removal.3 Petitioner
sought relief from removal based on his political opinion. He alleged that Pablo
Escobar Mendez, the mayor of his hometown of Aguacatan, was corrupt and
3
Before the BIA, Petitioner stated that he was beaten and threatened by a political figure
and his followers and that the IJ decided incorrectly because he was persecuted for his political
beliefs. Thus, Petitioner exhausted challenges to the denial of withholding of removal on the
merits.
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elected through fraud. Many of the townspeople, including Petitioner, protested
Mendez’s election in a public park; and people who worked for Mendez began
attacking people in the crowd. Petitioner alleged that he was beaten at the protest
and had to miss one month of work. He also alleged that people who worked for
Mendez threatened him and his sister at his mother’s house and later threatened
his mother after Petitioner had come to the United States. On appeal, Petitioner
argues that he and his family were persecuted because of their political beliefs.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the
[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We
review de novo legal determinations of the BIA. Id. And we review fact
determinations under the “highly deferential substantial evidence test” whereby
we “must affirm the BIA’s decision if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc) (citation and internal
quotation omitted). We “view the record evidence in the light most favorable to
the [BIA’s] decision and draw all reasonable inferences in favor of that decision”;
and we may reverse the BIA’s fact determinations “only when the record compels
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a reversal.” Id. at 1027.
The burden of proof is on the alien to show his eligibility for withholding of
removal by demonstrating past persecution or a likelihood of future persecution. 8
C.F.R. § 208.16(b); Sepulveda, 401 F.3d at 1232. An alien may meet this burden
based on his testimony alone, without corroboration or documentation, if he refers
to sufficient specific facts to satisfy the trier of fact that he is credible and
persuasive. 8 U.S.C. § 1158(b)(1)(B)(ii); D-Muhumed v. U.S. Attorney Gen., 388
F.3d 814, 818-19 (11th Cir. 2004). Because the IJ and BIA determined that
Petitioner’s testimony was not credible and we lack jurisdiction to review this
determination, we may reverse the BIA’s determination only if corroborating
evidence compels a finding that Petitioner was entitled to withholding of removal.
And Petitioner’s corroborating evidence, including newspaper articles and
country reports, provided only general background information about human
rights conditions in Guatemala and about protests to Mendez’s election. Nothing
demonstrated that Petitioner himself was harmed or likely is to be harmed in the
future because of his involvement with the protest of Mendez’s election. The
affidavit from Petitioner’s aunt offered only conclusory statements without
specific allegations of harm. So, Petitioner’s non-credible testimony did not
suffice to meet his burden without corroborating evidence; and Petitioner’s
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corroborating evidence does not compel the conclusion that he is entitled to
withholding of removal. We deny the petition for review on withholding of
removal.
PETITION DISMISSED IN PART, DENIED IN PART.
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