[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 20, 2008
No. 08-11801 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A98-677-709
A98-677-708
CARLOS ALBERTO GALARRAGA-AGUILAR,
ARELIS ESTHER GALARRAGA DE AGUILAR,
CARLOS EDUARDO GALARRAGA-AGUILAR,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 20, 2008)
Before DUBINA, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Petitioners Arelis Esther Galarraga de Aguilar (“Arelis”), Carlos Alberto
Galarraga-Aguilar (“Carlos”), and Carlos Eduardo Galarraga-Aguilar (“Carlos
Eduardo”) (collectively, “the Aguilars”) seek review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying
their applications 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, Inhuman, and Degrading Treatment or
Punishment (“CAT”), INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. §
208.16(c). The BIA and the IJ denied the Aguilars’ claim for asylum as time-
barred pursuant to 8 U.S.C. § 1158(a)(2)(B). Both the BIA and the IJ found that
the Aguilars had not met their burden for asylum and, as a result, had necessarily
failed to meet the more stringent burden for withholding of removal.1
In their petition, the Aguilars argue that the BIA and the IJ erred in making
an adverse credibility determination and in finding that they did not meet the
burdens for asylum and withholding of removal.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al-Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt any part
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The Aguilars have not raised the issue of the denial of their CAT claim on appeal.
Accordingly, they have abandoned the argument, and we will not review the BIA’s denial of
CAT relief. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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of the IJ’s decision, but it affirmed the IJ’s decision and agreed with its reasoning
in its own opinion. As a result, we review both the BIA’s and the IJ’s decisions.
I.
Pursuant to 8 U.S.C. § 1158(a)(3), we conclude that we lack jurisdiction to
review the BIA’s determination that an asylum applicant filed an untimely
application and failed to establish changed or extraordinary circumstances to
excuse his untimely filing. Fahim v. Att’y Gen., 278 F.3d 1216, 1217-18 (11th
Cir. 2002). Here, both the BIA and the IJ found that the Aguilars’ applications
were untimely and that they had failed to establish changed or extraordinary
circumstances to excuse the untimeliness. Accordingly, we decline to review the
BIA’s denial of the Aguilars’ claim for asylum.
II.
The BIA’s factual determinations are reviewed under the substantial
evidence test, and we must affirm the decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar, 257 F.3d at 1284 (internal quotation marks and citation omitted). The
substantial evidence test is “deferential” and does not allow “re-weigh[ing] the
evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th
Cir. 2001) (quoting Lorisme v. I.N.S., 129 F.3d 1441, 1444-45 (11th Cir. 1997)).
We review the record evidence in the light most favorable to the agency’s decision
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and may not overturn findings of fact unless the record compels it. Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The fact that evidence in the
record may also 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).
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or
Secretary of DHS has discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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.
8 U.S.C. § 1101(a)(42)(A).
The asylum applicant carries the burden of proving statutory “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),
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(b); Al Najjar, 257 F.3d at 1287. An asylum applicant may not show merely that
he has a political opinion, but must show that he was persecuted because of that
opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816, 117 L.
Ed. 2d 38 (1992). We have held that “persecution,” as used to illustrate that an
alien has suffered past persecution, “is an extreme concept, requiring more than a
few isolated incidents of verbal harassment or intimidation, and . . . mere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231
(quotation and alteration omitted).
If the alien establishes past persecution, it is presumed that his life or
freedom would be threatened upon return to the country of removal unless the
government shows by a preponderance that the country’s conditions have changed
such that the applicant’s life or freedom would no longer be threatened or that the
alien could relocate within the country and it would be reasonable to expect him to
do so. 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past
persecution may still be entitled to asylum if he can demonstrate a future threat to
his life or freedom on a protected ground in his country. 8 C.F.R.
§§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an applicant
must show that he has a fear of persecution in his home country and that “[t]here
is a reasonable possibility of suffering such persecution if he or she were to return
to that country.” 8 C.F.R. § 208.13(b)(2)(i). We have opined that “the precise
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contours of the ‘well-founded fear’ inquiry continue to evolve.” Al Najjar, 257
F.3d at 1289. However, we have held that “an applicant must demonstrate that his
or her fear of persecution is subjectively genuine and objectively reasonable.” Id.
“An asylum applicant’s voluntary return to his or her home country is a relevant
consideration in determining whether the asylum applicant has a well-founded
fear of future persecution.” De Santamaria v. U.S. Atty. Gen., 525 F.3d 999,
1011 (11th Cir. 2008). An applicant’s claim of persecution may be weakened or
undermined by a voluntary return to a home country. Id.
When a petitioner fails to “establish a claim of asylum on the merits, he
necessarily fails to establish eligibility for withholding of removal.” Forgue, 401
F.3d at 1288 n.4. This is because the standard for withholding of removal is
significantly higher than the asylum standard. See Al-Najjar, 257 F.3d at 1292-
93.
We review credibility determinations under the substantial evidence test.
D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004). “[T]his
court may not substitute its judgment for that of the BIA with respect to credibility
findings.” Id. at 818. In order to review a credibility determination, the IJ or BIA
must explicitly state that the applicant’s testimony was not credible. See Yang v.
U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
[T]he IJ [or BIA] must offer specific, cogent reasons for an adverse
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credibility finding. Once an adverse credibility finding is made, the
burden is on the applicant alien to show that the IJ’s [or BIA’s]
credibility decision was not supported by specific, cogent reasons or
was not based on substantial evidence. A credibility determination,
like any fact finding, may not be overturned unless the record
compels it.
Forgue, 401 F.3d at 1287 (internal citations and quotations omitted).
If credible, an alien’s testimony may be sufficient, without
corroboration, to sustain his burden of proof in establishing his eligibility
for relief from removal. Id. “Conversely, an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application.” Id. However, if an applicant produces evidence other than his
testimony, “it is not sufficient for the IJ to rely solely on an adverse
credibility determination in those instances.” Id.
The record here demonstates that both the BIA and the IJ explicitly
found that Arelis’s testimony was not credible and gave specific, cogent
reasons for discrediting Arelis’s testimony. Moreover, because the record
shows that much of Arelis’s testimony was vague, implausible, and
inconsistent, substantial evidence supports the BIA’s and IJ’s determination
that her testimony was not credible. Additionally, because the Aguilars
presented only weak evidence, apart from Arelis’s testimony, to support
their claims for asylum and withholding of removal, there was substantial
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evidence to support the BIA’s and the IJ’s determination that the Aguilars
failed to meet the burden for asylum and, accordingly, failed to meet the
more stringent burden for withholding of removal. As a result, we cannot
say that the record compels reversal of the BIA’s and IJ’s finding that the
Aguilars failed to meet the burden for withholding of removal.
For the above-stated reasons, we dismiss the petition in part and deny
it in part.
DISMISSED IN PART, DENIED IN PART.
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