[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12171 ELEVENTH CIRCUIT
MARCH 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A094-889-125, A094-889-126
LOURDES AMERICA PATINO DE SERRANO,
CARLOS EMILIO SERRANO RINCON,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 26, 2010)
Before DUBINA, Chief Judge, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioners Carlos Emilio Serrano Rincon (“Serrano”) and derivative asylum
applicant Lourdes America Patino de Serrano (“Patino”), natives and citizens of
Colombia, proceeding pro se, petition us for review of the Board of Immigration
Appeals’s (“BIA”) final order, affirming the Immigration Judge’s (“IJ”) denial of
his claims for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Before the BIA, Serrano conceded the inconsistencies
identified by the IJ in making an adverse credibility determination, but claimed that
his mental condition caused his recollection to be inaccurate and rendered his
testimony somewhat inconsistent.
On appeal, Serrano argues that he is eligible for asylum or withholding of
removal and claims that his life would be in jeopardy if he was removed to
Colombia because of past persecution by the FARC on account of his political
opinion. He also claims that he has shown a well-founded fear of persecution.
Serrano asserts that because of his mental issues, he should not have been the lead
petitioner. He also argues that his attorney made multiple errors which the BIA did
not consider. Serrano does not address the adverse credibility determination that
the BIA relied on to deny his claim for relief.
We review our subject matter jurisdiction de novo and lack jurisdiction to
consider claims not raised before the BIA. Amaya-Artunduaga v. U.S. Atty. Gen.,
463 F.3d 1247, 1250-51 (11th Cir. 2006). The BIA has the ability to hear an
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ineffective-assistance-of-counsel claim. See Sundar v. I.N.S., 328 F.3d 1320, 1325
(11th Cir. 2003) (describing exhaustion requirement and noting that another circuit
had held the BIA can hear an ineffective-assistance claim); see also Dakane v. U.S.
Atty. Gen., 399 F.3d 1269, 1272-74 (11th Cir. 2005). Failure to establish a claim of
asylum on the merits necessarily causes a claim for withholding of removal to fail.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005). A party
abandons a claim by not raising it on appeal. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (finding that, where a party fails to offer
argument on an issue, that issue is abandoned).
We review only the BIA’s decision except to the extent the BIA expressly
adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). However, where the BIA “affirmed and relied upon the IJ’s
decision and reasoning,” we review the IJ’s opinion, “to the extent that the BIA
found that the IJ’s reasons were supported by the record.” Tang v. U.S. Atty. Gen.,
578 F.3d 1270, 1275 (11th Cir. 2009). To establish asylum eligibility, the alien
must, with specific and credible evidence, establish past persecution on account of
a protected ground, such as political opinion, or have a “well-founded fear” that the
protected ground will cause such future persecution. 8 C.F.R. § 208.13(b).
We review a credibility determination under the substantial evidence test.
Chen v. U.S. Att’y. Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). Likewise,
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factual findings are reviewed under the substantial evidence test. Al Najjar, 257
F.3d at 1283. Under the substantial evidence test, we must affirm the BIA’s
decision if it is “supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. at 1284 (internal quotation marks omitted).
“To reverse a factual finding by the BIA, [we] must find not only that the evidence
supports a contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y
Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact that evidence in the record
may support a conclusion contrary to the administrative findings is not enough to
justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc).
An applicant’s testimony, if credible, may be sufficient to sustain the burden
of proof for asylum 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. “[A]n adverse credibility
determination does not alleviate the IJ’s duty to consider other evidence produced
by an asylum applicant . . . . [and, if] the applicant produces other evidence of
persecution, whatever form it may take, the IJ must consider that evidence.” Id.
“Further, the IJ must offer specific, cogent reasons for an adverse credibility
finding.” Id. “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
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specific, cogent reasons or was not based on substantial evidence.” Id. (internal
quotation marks omitted).
Serrano has abandoned his claim for CAT relief by not raising it on appeal.
Additionally, with regard to his argument about counsel’s errors, that claim was
not exhausted before the BIA. Last, there is no evidence in the record to support
Serrano’s claim that the mental impairment resulted from the beating he received
from the FARC.
With regard to the adverse credibility determination, Serrano’s brief on
appeal does not raise the issue, thereby abandoning it. Even if we were to consider
the adverse credibility determination, it was supported by substantial evidence, and
Serrano’s corroborating evidence did not establish persecution on account of a
protected ground.
PETITION DENIED.
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