[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 6, 2009
No. 08-15672 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A097-194-573, A097-194-574
YONEL FERNANDO FERNANDEZ,
NANCY GUADALUPE FERNANDEZ,
YONEL ANDRE FERNANDEZ,
IVONNE ASHTON FERNANDEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 6, 2009)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Yonel Fernando Fernandez, his wife Nancy Guadalupe Fernandez, and their
two children, Yonel Andre Fernandez and Invonne Ashton Fernandez, are natives
and citizens of Peru. They seek review of the Board of Immigration Appeal’s
order affirming the denial of their claims for asylum, withholding of removal and
relief under the United Nations Convention Against Torture (CAT).1 The IJ
initially granted Fernandez’s asylum claim, but later reopened the proceedings
after the government showed that Peruvian police reports that Fernandez had
submitted were fraudulent. Based on that new evidence, the IJ made an adverse
credibility determination against Fernandez, reversed its earlier decision, and
denied Fernandez’s claims for relief. The BIA affirmed.
We review the BIA’s decision and any portion of IJ’s decision that the BIA
expressly adopts. See Chen v. United States Att’y Gen, 463 F.3d 1228, 1230 (11th
Cir. 2006). Here the BIA’s order expressly adopted the IJ’s decision as a whole,
and so we will review the IJ’s decision as if it were the BIA’s. Id. The IJ’s factual
determinations are reviewed under the highly deferential “substantial evidence”
test. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Under the
substantial evidence test, we must affirm the agency’s decision “if it is supported
by reasonable, substantial, and probative evidence on the record considered as a
1
For convenience, we will refer to the petitioners collectively as “Fernandez,” unless
context requires otherwise.
2
whole.” Id. at 818. The agency’s factual findings are conclusive “unless a
reasonable factfinder would be compelled to conclude to the contrary.” Yang v.
United States, 418 F.3d 1198, 1201 (11th Cir. 2005). An adverse credibility
determination is a finding of fact evaluated under the substantial evidence test. See
D-Muhumed v. United States Att’y Gen, 388 F.3d 814, 818–19 (11th Cir. 2004).
“Once an adverse credibility finding is made, the burden is on the applicant alien to
show that the IJ’s credibility decision was not supported by ‘specific, cogent
reasons’ or was not based on substantial evidence.” Forgue v. United States Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
Fernandez contends that the IJ’s adverse credibility finding was improper.
We disagree because the IJ supported its adverse credibility finding with “specific,
cogent reasons.” Id. Specifically, the IJ based its adverse credibility determination
after determining that Fernandez had submitted fraudulent documents, purporting
to be Peruvian police reports, to support his alleged persecution. The record
supports that finding, most notably with the fact that a commander of the Peruvian
National Police stated that the reports were not authentic. He noted, for example,
that the officers named in the purported reports were not members of the police
department during the relevant years and that the seals on the reports were not the
official seals used by the police department. That is substantial evidence to support
an adverse credibility determination.
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Fernandez argues that the IJ did not submit the police reports for forensic
testing. He adds that he was never convicted of fraud and that the IJ found his
testimony credible at the initial asylum hearing. Those arguments are
unpersuasive. It is Fernandez’s burden “to show that the IJ’s credibility decision
was not supported by ‘specific, cogent reasons’ or was not based on substantial
evidence,” Forgue, 401 F.3d at 1287. He has not done that. The IJ considered the
all of the evidence submitted by Fernandez and found that his use of the fraudulent
police reports fatally undermined his claims for relief. In light of the IJ’s adverse
credibility finding, substantial evidence supports the denial of Fernandez’s claim
for asylum. See id. at 1287–88.
Fernandez has abandoned his additional claims for withholding of removal
and CAT relief by not arguing them on appeal. See Sepulveda v. United States
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
PETITION DENIED.
4