[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13632 ELEVENTH CIRCUIT
MAY 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A095-027-428
JUAN MERCEDES CRUZ,
a.k.a. Juan Mercedes Cruz Villanueva,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 6, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Juan Mercedes Cruz, a native and citizen of El Salvador, petitions for review
of a decision by the Board of Immigration Appeals that affirmed an Immigration
Judge’s denial of his application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture. Cruz contends that the
Immigration Judge and Board erred in concluding that he was not credible. He
argues that his testimony, when considered along with the evidence in the record,
establishes that he is entitled to withholding of removal and CAT relief.1
I.
“When the BIA issues a decision, we review the BIA’s decision, except to
the extent that the BIA has expressly adopted the IJ’s decision.” Niftaliev v. U.S.
Att’y Gen., 504 F.3d 1211, 1215 (11th Cir. 2007) (internal quotation marks
omitted). “To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s
decision as well.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir.
2009). Because the BIA adopted the IJ’s reasoning concerning the adverse
credibility finding, we will review both decisions. “Credibility determinations are
reviewed under the substantial evidence test, and we will not overturn them unless
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The BIA and the IJ denied Cruz’s claim for asylum because his application was
untimely and he failed to satisfy the requirements for any exception to the one-year filing
deadline. We lack jurisdiction to review those findings. Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003) (“[S]ection 1158(a)(3) divests our Court of jurisdiction to review a
decision regarding whether an alien complied with the one-year time limit or established
extraordinary circumstances that would excuse his untimely filing.”).
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the record compels it.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 n.6 (11th
Cir. 2009). “Once an adverse credibility finding is made, the burden is on the
applicant alien to show that the IJ’s credibility decision was not supported by
specific, cogent reasons or was not based on substantial evidence.” Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (quotation marks and citations
omitted). “Indications of reliable testimony include consistency on direct
examination, consistency with the written application, and the absence of
embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).
The BIA and IJ gave specific, cogent reasons for finding Cruz not credible
and for concluding that he was ineligible for withholding of removal. In support of
the adverse credibility finding, the BIA and the IJ pointed to material omissions
and inconsistencies in Cruz’s hearing testimony and asylum application. In his
application, Cruz alleged that MS-13 gang members attacked him in October 1996
and February 1997 because of his sexual orientation. However, at his hearing Cruz
testified on direct examination that he did not know the identity of his attackers
and had never seen them before. Only after the IJ pointed out the inconsistency did
Cruz testify that his attackers were MS-gang members and that he feared they
would attack him because of his sexual orientation if he returned to El Salvador.
The BIA and IJ also pointed to inconsistencies in Cruz’s hearing testimony. Cruz’s
testimony that he feared being attacked by MS-13 gang members because of his
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sexual orientation was inconsistent with his testimony that he only feared gangs
because he believed that they would steal from him and attempt to recruit him if he
returned to El Salvador.
Cruz contends that he should not have been discredited because Dr.
Henriquez’s letter corroborated his testimony. See Forgue, 401 F.3d at 1287
(stating that “an adverse credibility determination does not alleviate the IJ’s duty to
consider other evidence produced by an asylum applicant”). In his brief, he argues
that Dr. Henriquez’s letter is the “single most important piece of evidence in this
case” and compels reversal. The letter, which was dated July 5, 2007, stated that
Cruz was an emergency room patient on October 18, 1996 “for having received
multiple injuries by, according to him, a group of men who showed contempt
because of his sexual preference.” The letter also stated that Cruz was hospitalized
for five days in February 1997 after “the same act was repeated.” We disagree
with Cruz that Dr. Henriquez’s letter compels reversal. It was dated over ten years
after the attacks and did not identify Cruz’s attackers. The letter’s assertion that
“according to [Cruz]” the attacks were performed by “a group of men who showed
contempt because of his sexual preference” does not compel a conclusion that Cruz
was credible.
The BIA and IJ’s adverse credibility finding is supported by substantial
evidence and thus Cruz is not entitled to withholding of removal. Because he has
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failed to show that it is “more likely than not” that he will be tortured upon his
return to El Salvador, Cruz is also not entitled to CAT relief. See D-Muhumed v.
U.S Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004). Accordingly, we deny his
petition.
PETITION DENIED.
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