[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13086 JULY 11, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA No. A78-407-593
SANYDE GEFFRARD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(July 11, 2005)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Sanyde Geffrard, proceeding pro se, petitions for review of the Board of
Immigration Appeals’ (“BIA’s”) decision affirming, without opinion, the
immigration judge’s (“IJ’s”) denial of her application for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”), and relief under
the United Nations Convention Against Torture and Other Cruel, Inhumane or
Degrading Treatment or Punishment (“CAT”). Because Geffrard’s removal
proceedings commenced after April 1, 1997, the permanent rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009 (1996) (hereinafter “IIRIRA”), apply. See Gonzalez-
Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
A. IJ’s Refusal to Admit Untranslated Documents
On appeal, Geffrard first argues that the IJ erred by refusing to accept the
death certificate of Geffrard’s grandmother into evidence, or, alternatively,
granting Geffrard a continuance in order to allow the document to be translated
and authenticated. According to Geffrard, the death certificate was necessary in
order to corroborate her testimony, and the IJ’s failure to grant a continuance was
a violation of her Fifth Amendment due process rights. Geffrard argues that her
grandmother’s death certificate, as well as the documentary evidence regarding her
employment with the Haitian Bureau of Election Controls (“BEC”), “could [have]
negate[d] her questionable testimony,” and, therefore, the IJ’s refusal to admit it
was a due process violation.
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We may review a final order of removal only if the alien has exhausted all
administrative remedies available to her as of right. See INA § 242(d)(1), 8
U.S.C. § 1252(d)(1). Because § 1252(d)(1) imposes a jurisdictional requirement,
we lack jurisdiction to review claims that were not raised before the BIA. See
Fernandez-Bernal v. Att’y Gen. of United States, 257 F.3d 1304, 1317 n.13 (11th
Cir. 2001). We have stated that exhaustion may not be required where the claim at
issue is a constitutional challenge to the INA or a due process claim that the BIA
does not have the authority to address. Sundar v. INS, 328 F.3d 1320, 1325 (11th
Cir. 2003). However, if the BIA has the authority to adjudicate the claim, then
“the exhaustion requirement applies with full force.” Id.; Rashtabadi v. INS, 23
F.3d 1562 (9th Cir. 1994) (holding that it lacked jurisdiction to review the
petitioner’s claims because they were allegations of procedural errors that could
have been corrected by, but were not presented to, the BIA).
The BIA has jurisdiction over appeals from final removal orders of the IJ,
and it “may review questions of law, discretion, and judgment and all other issues
in appeals from decisions of immigration judges de novo.” 8 C.F.R.
§ 1003.1(b)(3), (d)(3)(ii). Any foreign-language document offered by a party in a
removal proceeding must be accompanied by a certified English translation. 8
C.F.R. § 1003.33. The IJ may set and extend the time limits for the filing of
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documents and may grant a motion for continuance where good cause is shown. 8
C.F.R. §§ 1003.29 & 1003.31(c). An alien may file a motion to reopen with the
BIA in order to present evidence that was unavailable at the time of her removal
proceedings. See INA § 240(c)(6), 8 U.S.C. § 1229a(c)(6); 8 C.F.R.
§ 1003.2(c)(1).
We conclude that we do not have jurisdiction to consider Geffrard’s claim
that the IJ erred by refusing to accept her additional documentary evidence
because she failed to exhaust her administrative remedies with respect to this
issue. Because the documents were untranslated at the time of the hearing, they
were inadmissible at that time and could have been admitted into evidence only if
the IJ chose to exercise its discretion and grant Geffrard a continuance. See 8
C.F.R. §§ 1003.19, 1003.33. Whether the IJ abused its discretion in refusing to
grant a continuance is an issue that the BIA is authorized to review, and, therefore,
Geffrard failed to exhaust that claim by not raising it in either her direct appeal to
the BIA or in a motion to reopen. See 8 C.F.R. §§ 1003.1(c)(3)(ii), 1003.2(c)(1).
B. Asylum and Withholding of Removal under the INA
Geffrard next argues that the IJ erred by finding that she failed to meet her
burden of proving eligibility for asylum based on a well-founded fear of
persecution on account of her imputed political opinion. According to Geffrard,
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the attack on her uncle, the murder of her grandmother, and the threats
communicated to her by the Fanmi Lavalas (“FL”) political party, had a traumatic
effect on her and rose to the level of persecution. Additionally, Geffrard argues
that she has satisfied the more exacting burden of proving entitlement to
withholding of removal.
When the BIA summarily affirmed the IJ’s decision without opinion, the
IJ’s decision became the final removal order subject to review. See Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003) (citing 8 C.F.R.
§ 3.1(a)(7), now found at 8 C.F.R. § 1003.1(a)(7)). The BIA’s factual
determinations are reviewed under “the highly deferential substantial evidence
test,” which requires us to “view the record evidence in the light most favorable to
the [BIA]’s decision and draw all reasonable inferences in favor of that decision.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We
“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001).
The Attorney General has discretion to grant asylum if an alien meets the
INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA
defines “refugee” as follows:
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[A]ny person who is outside any country of such
person’s nationality . . . 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.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the
burden of proving 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 a statutorily listed factor, or (2) a “well-founded
fear” that the statutorily listed factor will cause such future persecution. 8 C.F.R.
§ 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
We conclude that the IJ’s findings are supported by substantial evidence,
and a reasonable factfinder would not be compelled to conclude that Geffrard
satisfied her burden of proving asylum eligibility. Although Geffrard’s testimony,
if credible, may have entitled her to relief, a reasonable factfinder would not have
been compelled to believe her testimony because: (1) it conflicted with the
statements that she made in her initial interview with the Immigration and
Naturalization Service (“INS”) officer; (2) she became defensive and evasive
when asked about her political affiliation; and (3) she gave inconsistent statements
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regarding the elections that she worked on and the compensation that she received.
Because Geffrard has failed to demonstrate asylum eligibility, she also has failed
to meet the more exacting standard for demonstrating entitlement to withholding
of removal. See Al Najjar, 257 F.3d at 1292-93.
C. Withholding of Removal under CAT
Finally, Geffrard argues that the IJ erred by finding that she had failed to
meet her burden of proving entitlement to CAT relief. According to Geffrard, the
beating of her uncle and the murder of her grandmother rose to the level of torture,
as defined by CAT, and, therefore, it is likely that she too will be tortured if she
returns to Haiti. Geffrard argues that her fear of torture is supported by the 2001
Country Reports on Human Rights Practices for Haiti (hereinafter “Country
Report”), which stated that the FL-controlled Haitian government frequently
commits “serious human rights abuses.”
The IJ’s determination that an alien is not entitled to withholding of removal
under CAT is reviewed under the substantial evidence test. See Al Najjar, 257
F.3d at 1283-84. In order to demonstrate entitlement to withholding of removal
under CAT, an alien must demonstrate that it is more likely than not that she
would be tortured if removed to her country of origin. 8 C.F.R. § 208.16(c)(2);
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see also Al Najjar, 257 F.3d at 1303. Evidence relevant to a determination of
whether it is more likely than not that an alien will be tortured in the country of
removal, includes, but is not limited to, evidence of: (1) past torture suffered by
the alien; (2) the possibility of relocation within the removal country; (3) human
rights abuses in the removal country; and (4) overall conditions in the country of
removal. 8 C.F.R. § 208.16(c)(3)(i)-(iv).
[F]or an act to constitute “torture” under CAT, it must
be: (1) an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for an illicit or
proscribed purpose; (4) by or at the instigation of or with
the consent or acquiescence of a public official who has
custody or physical control of the victim; and (5) not
arising from lawful sanctions.
Cadet v. Bulger, 377 F.3d 1173, 1181 (11th Cir. 2004).
We conclude that the evidence presented in this case would not compel a
reasonable factfinder to conclude that it is more likely than not that Geffrard
would be tortured if removed to Haiti. Accordingly, we deny Geffrard’s petition
for review.
PETITION DENIED.
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