[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11129 NOVEMBER 28, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
Agency No. A095-949-624
DIEGO GOMEZ MARTINEZ,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 28, 2011)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Diego Gomez Martinez, a native and citizen of Colombia, appeals the Board
of Immigration Appeals’s decision affirming the Immigration Judge’s denial of his
application for asylum and withholding of removal. The IJ ruled that Martinez’s
asylum application was untimely and that he was not credible with respect to his
claims for withholding of removal and CAT relief. The BIA observed that
Martinez had not challenged the IJ’s finding that his application for asylum was
untimely and also concluded that he had not shown any changed or extraordinary
circumstances that would excuse the untimely filing. The BIA upheld the IJ’s
adverse credibility determination on the withholding claim. It dismissed
Martinez’s appeal.
Martinez contends that the BIA erred in denying his asylum application
because he established that he suffered persecution, but he fails to address the
BIA’s finding that his asylum application was time-barred. Martinez also
challenges the adverse credibility finding that led to the denial of his withholding
claim, arguing that he corroborated his claim and that there were no
inconsistencies between his asylum application and his testimony at the removal
hearing.
I.
We review de novo our subject matter jurisdiction. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). An alien cannot apply for
asylum unless he demonstrates “by clear and convincing evidence that the
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application has been filed within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). We lack 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.”
Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005); see also 8
U.S.C. § 1158(a)(3). Here, the BIA concluded that Martinez’s asylum application,
which was filed nine years after he entered this country, was time-barred.
Furthermore, Martinez did not even challenge the IJ’s untimeliness finding before
the BIA, so that claim is unexhausted. See Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to review the denial of
Martinez’s asylum application, and we dismiss his petition for review of that issue.
II.
As for the denial of withholding of removal, we review the BIA’s decision,
which did not expressly adopt the IJ’s opinion. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). The BIA determined that the IJ did not clearly
err in its adverse credibility determination and that Martinez had failed to address
directly some of the inconsistencies in the record.
Congress amended the law regarding credibility determinations for asylum
and withholding of removal applications, like Martinez’s, which were filed after
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May 11, 2005. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006)
(discussing the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302). Under
the applicable standard credibility determinations are based on the totality of the
circumstances and all relevant factors “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii). The denial of withholding of removal can be based
solely on an adverse credibility determination, particularly if the applicant fails to
produce corroborating evidence. See Chen, 463 F.3d at 1231. Once an adverse
credibility finding is made, the burden shifts to the applicant to show that finding
is not supported by “specific, cogent reasons” or was not based on substantial
evidence. Id. at 1232 (quotation marks omitted). We will not overturn an adverse
credibility finding unless the record compels us to do so. Id.
The record does not compel the conclusion that the adverse credibility
determination was erroneous. The totality of the circumstances support the
decision. Among other things, Martinez’s statements about an alleged 1999
FARC assassination attempt were inconsistent. In his asylum application he
recounted that he heard a motorcycle, looked up, and then gunmen immediately
began firing on him. During his testimony at the removal hearing, he recounted
that he saw the men from far off—30 meters away, in fact—they donned masks,
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rode up to him, and then fired. He also testified that the men shot four bullets into
his home, which was a crucial detail he omitted from his application. Martinez
produced no documentation or testimony to corroborate his account of the event.
And his explanation about why he did not file a police report was inherently
implausible: Martinez did not tell the police that FARC was trying to kill him
because if he had, FARC would try to kill him. Martinez also could not explain
why a letter explaining his role in a Colombian political group that he requested
three months before his removal hearing in 2010 was dated 1995.
The BIA’s adverse credibility determination is supported by specific, cogent
reasons, including discrepancies about the 1995 letter and the scope of Martinez’s
membership and responsibilities in a political group and his inconsistent accounts
of the shooting incident and failure to offer corroborating evidence of that event.
Because the record does not compel reversal of the BIA’s adverse credibility
determination, we deny Martinez’s petition on his claim for withholding of
removal.1
PETITION DISMISSED IN PART, DENIED IN PART.
1
Because Martinez did not raise any argument regarding the BIA’s dismissal of his CAT
claim, that issue has been abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005).
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