[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 17, 2009
No. 09-10852 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A078-600-416, A078-600-417
LUIS HUERTAS REPIZO,
DORA LILIA HUERTAS,
MARIA CAMILLA HUERTAS,
LUIS FELIPE HUERTAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 17, 2009)
Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Petitioners Luis Huertas Repizo, his wife, Dora Lilia Huertas, and their
minor children, Maria Camilla Huertas and Luis Felipe Huertas, seek review of the
Board of Immigration Appeals’s (“BIA”) decision adopting and affirming the
Immigration Judge’s (“IJ”) order denying their 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,
Inhuman, or Degrading Treatment or Punishment. On appeal, Repizo argues that
the BIA erred in upholding the IJ’s adverse credibility determination because the
principal discrepancies and omissions described by the IJ lacked evidentiary
support.1
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2002). As the BIA expressly adopted and affirmed the
IJ’s adverse credibility determination, we review both decisions.
Factual determinations, including credibility determinations, are reviewed
under the substantial evidence test, which requires us to affirm the BIA’s decision
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Repizo also argues that the lack of corroborative evidence to support his allegations of
persecution was due to ineffective assistance of counsel, and indicates that he recently filed a
motion to reopen removal proceedings with the BIA on said grounds. Since the BIA has yet to
make a determination with regard to his motion to reopen, we lack jurisdiction to review
Repizo’s ineffective assistance of counsel claim because he has not yet exhausted his
administrative remedies. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250 (11th Cir. 2006) (holding that appellate jurisdiction over final orders of removal
are limited to claims that have been exhausted before the BIA).
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if it is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2005) (internal quotation marks omitted). The substantial evidence test
is “highly deferential” and obligates us to “view the record evidence in the light
most favorable to the agency’s decision and draw all reasonable inferences in favor
of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc). To reverse an administrative factual determination, “we must find that the
record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003).
Although an adverse credibility determination “alone may be sufficient to
support the denial of an asylum application,” it is not sufficient for the IJ to solely
rely on the determination if “the applicant produces other evidence of persecution.”
Forgue, 401 F.3d at 1287. Generally, “[t]he weaker an applicant’s testimony . . .
the greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005). Nevertheless, once an adverse credibility
determination 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, 401 F.3d at 1287 (quoting D-Muhumed v.
U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004)). “Indications of reliable
testimony include consistency on direct examination, consistency with the written
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application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1255 (11th Cir. 2006). Thus, in Forgue, we held that substantial evidence
supported an adverse credibility determination where the petitioner omitted
relevant facts from his asylum application and failed to produce corroborating
evidence for the IJ to consider. 401 F.3d at 1287.
Because Repizo omitted material facts from his asylum application and
failed to proffer corroborative evidence to support his claim of persecution, the
adverse credibility determination was supported by substantial evidence in the
record. Accordingly, the record neither compels, nor supports, a reversal of the IJ
and BIA’s decisions. Thus, we deny the petitioners’ petition for review.
PETITION DENIED.
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