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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11530
Non-Argument Calendar
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Agency No. A206-701-676
KENIA FABIOLA NUNEZ-ROMERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 14, 2018)
Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Petitioner Kenia Nunez-Romero, a native and citizen of Honduras, petitions
for review of the Board of Immigration Appeals’s (“BIA”) order affirming the
Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Because
neither of the arguments Petitioner raises in her petition for review were exhausted
to the BIA, we lack jurisdiction to review these arguments. Accordingly, we
dismiss the petition for review.
I. BACKGROUND
In July 2014, the Department of Homeland Security served Petitioner with a
Notice to Appear, charging her with inadmissibility under 8 U.S.C.
§ 1182(a)(6)(A)(i), for being an alien present in the United States without being
admitted or paroled. In March 2015, Petitioner filed an application for withholding
of removal and CAT relief based on her membership in a particular social group.
Specifically, she asserted that she feared returning to Honduras because her son’s
father had physically abused her and threatened to kill her.
At a subsequent hearing before the IJ, Petitioner admitted the allegations in
the Notice to Appear and indicated that she was seeking asylum, in addition to
withholding of removal and CAT relief. At the merits hearing, Petitioner testified
that she had failed to file her asylum application within one year of her arrival in
February 2013 because she was busy trying to find a way to bring her son to the
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United States. Petitioner explained that she was kidnapped by her son’s father in
2002, when she was 14 years old. She said he took her to the mountains and raped
her repeatedly for several months. She became pregnant during this time. She also
recounted a separate occasion where she was raped by her son’s father’s cousins.
On cross-examination, Petitioner changed her account, testifying that she
became pregnant with her son in 2005 and gave birth to him in 2006. Government
counsel asked Petitioner to explain why she testified on direct examination that she
became pregnant in 2002 while she was in the mountains, but just moments later
had said she became pregnant with this son in 2005. Petitioner clarified that she
had been pregnant twice; she had gotten pregnant for the first time when she was in
the mountains but lost that baby due to her son’s father’s abuse. On redirect
examination, Petitioner, switched gears again, admitting that she had only been
pregnant once and had lied about having a miscarriage.
Following the hearing, the IJ denied Petitioner’s applications for relief. The
IJ noted that Petitioner’s inadmissibility pursuant to § 1182(a)(6)(A)(i) had been
established by clear and convincing evidence. The IJ further concluded that
Petitioner was statutorily ineligible for asylum because her application was filed
more than one year after her arrival in the United States and she had failed to
establish changed or extraordinary circumstances that would excuse the untimely
filing. As to her applications for withholding of removal and CAT relief, the IJ
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found Petitioner incredible based on the repeated false testimony she provided
during her testimony. After concluding that Petitioner had not presented sufficient
corroborative evidence to rehabilitate her claims, the IJ denied her applications and
ordered her removed to Honduras.
Petitioner appealed to the BIA, challenging only the IJ’s adverse credibility
determination. The BIA affirmed the IJ’s decision and dismissed the appeal. First,
the BIA noted that Petitioner had failed to challenge the IJ’s determination that she
was not statutorily eligible for asylum, and thus she had waived that issue. As to
the only challenge Petitioner made on appeal, the BIA determined that the IJ’s
adverse credibility determination was not clearly erroneous, and that the IJ acted
well within her authority to find Petitioner not credible, based on her false
testimony. Accordingly, the BIA affirmed the IJ’s denial of Petitioner’s
applications for withholding of removal and CAT relief.
II. DISCUSSION
In her petition for review before us, Petitioner argues that her case should be
remanded because she never conceded the charge of inadmissibility. Petitioner
also asserts that the IJ erred by concluding that she did not have authority to grant
humanitarian asylum. She does not raise the one challenge that she litigated before
the BIA: the IJ’s finding that she was not credible.
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We review our subject matter jurisdiction de novo. Alvarado v. U.S. Att’y
Gen., 610 F.3d 1311, 1314 (11th Cir. 2010). We may review a final order of
removal only if the petitioner has exhausted her administrative remedies. 8 U.S.C.
§ 1252(d)(1). Exhaustion is a jurisdictional requirement and prevents our Court
from reviewing a claim not presented to the BIA, even if the BIA addressed the
claim sua sponte. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006).
Here, we lack jurisdiction to review the arguments Petitioner raises in her
petition for review because Petitioner never raised them with the BIA, meaning she
has failed to exhaust her administrative remedies. In her brief to the BIA,
Petitioner never questioned the IJ’s decision regarding her inadmissibility nor even
argued that the IJ should have granted her humanitarian asylum. She challenged
only the IJ’s adverse credibility determination. It is true that some constitutional
challenges and due process claims do not require exhaustion if the BIA does not
have authority to adjudicate those claims. Sundar v. I.N.S., 328 F.3d 1320, 1325
(11th Cir. 2003) (noting that where a claim is “within the purview of the BIA
which can provide a remedy, the exhaustion requirement applies with full force”).
But here, Petitioner raises no constitutional or due process claims in her petition
for review, and the BIA could have adjudicated the two claims she now makes.
Thus, because the arguments Petitioner raises in this petition for review were not
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presented to the BIA, they are not exhausted and we lack jurisdiction to consider
them. See id.
As to the denial of Petitioner’s applications for asylum, withholding of
removal, and CAT relief, she has abandoned any arguments she may have had
pertaining to these claims by not raising them in her appellate brief. See Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating that issues not
raised on appeal are deemed abandoned). Indeed, as noted, Petitioner does not
challenge the BIA’s determination as to the only argument she did exhaust—that
is, the BIA’s conclusion that the IJ’s adverse credibility determination was not
clearly erroneous.
PETITION DISMISSED.
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