[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 17, 2008
No. 08-11000 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-905-526
FREY OLIDER MORENO VALENCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 17, 2008)
Before BIRCH, DUBINAand BARKETT, Circuit Judges.
PER CURIAM:
Frey Olider Moreno Valencia, a native and citizen of Colombia, petitions for
review of the order by the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ’s”) final order denying his application for asylum,
withholding of removal, and United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) relief.1 In
his petition Moreno argues that the IJ erred in dismissing his application for
asylum as statutorily barred due to Moreno’s failure to file it in a timely manner
and to demonstrate that he met one of the exceptions to timely filing of the asylum
application. Moreno also argues that the IJ’s denial of his request for withholding
of removal was erroneous to the extent that it was based on an adverse credibility
determination that was not supported by substantial evidence.
I.
Moreno first argues that although he filed his asylum application more than
one year after his arrival in the United States, he has shown both exceptional and
changed circumstances that excuse his late filing. An asylum application must be
“filed within 1 year after the date of the alien’s arrival in the United States.” 8
U.S.C. § 1158(a)(2)(B). An untimely application may be considered if the alien
can demonstrate the “existence of changed circumstances which materially affect”
1
Valencia did not raise in his brief to this Court any challenge to the BIA’s affirmance of
the IJ’s denial of his CAT claim. Thus, we deem him to have abandoned this claim.
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his eligibility or “extraordinary circumstances” relating to the delay in filing his
application. Id. § 1158(a)(2)(D). The statute further provides that “No court shall
have jurisdiction to review any determination” made pursuant to § 1158(a)(2). Id.
§ 1158(a)(3). We have held that this language precludes federal court review of
determinations regarding the timeliness of an asylum application or the changed or
extraordinary circumstances exceptions. Fahim v. U.S. Att’y Gen., 278 F.3d 1216,
1218 (11th Cir. 2002).
Notwithstanding this prohibition, Moreno argues that in accordance with the
Real ID Act, which gave federal courts jurisdiction to review “constitutional claims
or questions of law” arising from some previously non-reviewable, discretionary
rulings, we should review the determination with regard to the exceptions to the
one-year asylum filing deadline. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
957 (11th Cir.2005). However, the “timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.” Id.
Furthermore, the REAL ID Act governs only those applications filed after May 11,
2005, and thus is inapplicable here since Moreno filed his original asylum
application with the former Immigration and Naturalization Service (“INS”) in
2002, prior to the passage of the REAL ID Act.
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Accordingly, we lack jurisdiction to review Moreno’s claim that the BIA
erred in rejecting his asylum claim by its determination that the claim was
untimely.
II.
Next, Moreno argues that he qualifies for withholding of removal as it is
more likely than not that he will be persecuted if returned to Colombia because of
his union participation and political involvement in the Liberal Party and that the IJ
erred by finding that he was not credible.
Upon a petition for review of a decision of the BIA, we review only the
BIA’s decision, except to the extent that it expressly adopts the IJ’s decision. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Where the BIA has
issued its own order, but has adopted the IJ’s reasoning and findings, we review
both the BIA’s and IJ’s decisions. Id. Here, the BIA’s order relied upon the IJ’s
findings as to Moreno’s credibility so we review both decisions.
When considering a petition to review a BIA final order, we review the
BIA’s factual findings under the substantial evidence test. Id. at 1283. We also
review the IJ’s credibility determinations under the substantial evidence test.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under the
substantial evidence test, we must affirm the IJ’s or BIA’s decision if it is
“supported by reasonable, substantial, and probative evidence on the record
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considered as a whole.” Al Najjar, 257 F.3d at 1284 (quotation omitted). “To
reverse a factual finding, [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 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) (en banc).
An applicant’s testimony, if credible, may carry the burden of proof for
asylum or withholding of removal without corroboration. 8 C.F.R. §§ 208.13(a);
208.16(b). “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 [BIA]’s duty
to consider other evidence produced by an asylum applicant.” Id. “Further, the
[BIA] 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 [BIA]’s credibility decision was not supported by ‘specific, cogent
reasons’ or was not based on substantial evidence.” Id. “[We] may not substitute
[our] judgment for that of the [BIA] with respect to credibility findings.” Id. at
1286.2
2
Although Congress amended the law regarding credibility determinations with passage
of the REAL ID Act, as we previously discussed, those changes do not apply to Moreno’s
application. Chen v. U.S. Att'y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (discussing REAL
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Upon our review of the record evidence and the parties’ briefs, we conclude
that the BIA did not err in affirming the IJ’s adverse credibility determination
because substantial evidence supports the IJ’s decision. The IJ’s decision is based
on several separate and distinct findings of inconsistencies, ambiguities, and
contradictions between Moreno’s testimony and his written application regarding
(1) details of his employment, including his job positions, rates of pay and dates of
employment; (2) his labor union and political party involvement; (3) whether his
passport was stolen; (4) the alteration of his voter registration card; (5) the
authenticity of his labor union’s periodical, La Escoba; and (6) his explanation for
his delay in filing for asylum.
Therefore, the adverse credibility determination justified the BIA’s denial of
withholding of removal, especially as much of Moreno’s supporting evidence was
implicated and discussed. Accordingly, we dismiss Moreno’s petition for review
as to the timeliness of his asylum claim and deny his petition as to his request for
withholding of removal.
DISMISSED IN PART AND DENIED IN PART.
ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, § 101(h)(2).
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