FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11902

Non-Argument Calendar

________________________

Agency Nos. A094-911-820, A094-911-821

MIGUEL ANTONIO RODRIGUEZ RODRIGUEZ,

ADRIANA PATRICIA VALBUENA ARIAS,

MIGUEL ANGEL RODRIGUEZ VALBUENA,

JUANITA RODRIGUEZ VALBUENA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 8, 2009)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Petitioners Miguel Antonio Rodriguez Rodriguez and Adriana Patricia

Valbuena Arias, and their children, Miguel Angel Rodriguez Valbuena and Juanita
Rodriguez Valbuena, seek review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the Immigration Judge’s (“IJ”) order denying their application

for asylum, withholding of removal under the Immigration and Nationality Act

(“INA”), and relief under the Convention Against Torture (“CAT”). On appeal,

they argue that: (1) substantial evidence did not support the IJ’s adverse credibility

determination, and, moreover, that the determination violated their right to due

process; and (2) on the merits, the IJ’s denial of asylum was erroneous. After

thorough review, we dismiss the petition in part, and deny it in part.

We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). When evaluating a petition for

review of an order by the BIA denying an application for asylum and withholding

of removal, we review findings of fact under the highly deferential substantial

evidence test, and must affirm the decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Forgue

v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted).

Moreover, we review the record evidence in the light most favorable to the

agency’s decision, and may not overturn findings of fact unless the record compels

it. Id. at 1286-87. Because credibility determinations constitute factual findings,

we review such determinations under the substantial evidence test, and will not

substitute our judgment for that of the IJ or BIA. Id. at 1286.

2
When the BIA issues a separate 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. 2001). “Insofar as the [BIA] adopts the

IJ’s reasoning, we will review the IJ’s decision as well.” Id. We, however, will

not review the IJ’s decision as to an issue not addressed by the BIA. Instead, if

necessary, we must remand the case to give the BIA “the opportunity to address

the matter in the first instance in light of its own expertise.” INS v. Ventura, 537

U.S. 12, 16-17 (2002).

As an initial matter, we lack jurisdiction over the petitioners’ due process

claim and over their claim that the IJ erred when he found that Rodriguez was not a

victim of past persecution on account of political opinion. We may not review a

final order of removal unless “the alien has exhausted all administrative remedies

available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner fails to

exhaust available administrative remedies, we lack jurisdiction to consider the

claim. Amaya-Artunduaga, 463 F.3d at 1250. In Amaya-Artunduaga, we held that

an alien did not exhaust administrative remedies when he failed to raise his due

process claim before the BIA. Id. at 1251.

In this case, we do not have jurisdiction to review the petitioners’ due

process claim because they failed to exhaust administrative remedies by not raising

that claim in their notice of appeal or brief to the BIA. See 8 U.S.C. § 1252(d)(1);

3
Amaya-Artunduaga, 463 F.3d at 1250-51. We also cannot review their claim that

the IJ erred by denying them asylum on the merits, because the BIA did not reach

that issue, but simply affirmed the IJ’s adverse credibility determination and

reasoned from there. See Ventura, 537 U.S. at 16-17. We therefore dismiss the

petition as to these two claims.

We also reject the petitioners’ argument that substantial evidence did not

support the IJ’s adverse credibility determination. An alien who arrives in or is

present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). The

Attorney General has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). 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 political opinion or any other protected ground, or (2) a

well-founded fear that political opinion or any other protected ground will cause

4
future persecution. 8 C.F.R. § 208.13(a) and (b). To qualify for withholding of

removal, an applicant must establish that it is more likely than not that the

applicant’s “life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (citing 8 U.S.C.

§ 1231(b)(3)(A)). When a petitioner fails to establish a claim of asylum on the

merits, that petitioner “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

Amaya-Artunduaga, 463 F.3d at 1249 n.3. If an IJ makes a finding that a

petitioner is not entitled to asylum, that IJ is “not obligated to make specific

findings with respect to withholding of removal.” Id.

An applicant’s testimony, if credible, may carry that applicant’s burden of

proof without corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse

credibility determination alone may be sufficient to support the denial of an asylum

application.” Forgue, 401 F.3d at 1287. Nevertheless, if an applicant who is not a

credible witness produces other evidence of persecution aside from his testimony,

the IJ and BIA must consider that evidence. Id. “The weaker an applicant’s

testimony, however, the greater the need for corroborative evidence.” Yang v.

U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).

5
In order to enable our review of credibility findings, the IJ must make a

clean, explicit determination of credibility. Id. “Once an adverse credibility

finding is made, the burden is on the applicant alien to show that the IJ’s [and

BIA’s] credibility decision was not supported by specific, cogent reasons or was

not based on substantial evidence.” Forgue, 401 F.3d at 1287 (quotation omitted).

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).

The Real ID Act of 2005 (“RIDA”), which amended the INA’s asylum

provisions, provides:

Considering the totality of the circumstances, and all relevant factors,

a trier of fact may base a credibility determination on the demeanor,

candor, or responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the consistency

between the applicant’s or witness’s written and oral statements

(whenever made and whether or not under oath, and considering the

circumstances under which the statements were made), the internal

inconsistency of each such statement, the consistency of such

statements with other evidence of record (including the reports of the

Department of State on country conditions), and any inaccuracies or

falsehoods in such statements, without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant’s claim, or any other relevant factor.

Pub. L. No. 109-13, § 101(a)(3), (d)(2), 119 Stat. 231, 303, 304-05 (codified at 8

6
U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C)). This provision of RIDA applies to

asylum applications filed after May 11, 2005. Pub. L. No. 109-13, § 101(h)(2),

119 Stat. at 305.

In this case, the IJ made a clean adverse credibility determination against

Rodriguez. The IJ explicitly found Rodriguez’s testimony inconsistent and not

credible. See Yang, 418 F.3d at 1201. Moreover, substantial evidence supported

that determination. The IJ noted, and Rodriguez now admits, that Rodriguez’s

wife’s testimony contradicted Rodriguez’s testimony regarding at what time and to

whose house in Bogotá Rodriguez returned after the roadblock shooting incident.

While the discrepancy regarding the time is relatively minor, the discrepancy

regarding at whose house Rodriguez and his wife were staying at the time is stark.

Under RIDA, which applies to this case, the IJ was free to base his credibility

determination on this inconsistency of Rodriguez’s testimony “with other evidence

of record,” such as his wife’s testimony. 8 U.S.C. §§ 1158(b)(1)(B)(iii).

In addition, the BIA also considered Rodriguez’s nontestimonial evidence.

See Forgue, 401 F.3d at 1287. The BIA expressly explained how Rodriguez’s

submitted documents, including photographs of the car, a newspaper article, and

Sermiento’s death certificate, failed to corroborate his testimony. And since

Rodriguez’s testimony contradicted his wife’s testimony on two grounds, the need

for corroborative evidence was all the greater. See Yang, 418 F.3d at 1201.

7
Finally, because the IJ did make a clean credibility finding, it is Rodriguez’s

burden to show that the finding was not supported by specific, cogent reasons, or

was not based on substantial evidence. See Forgue, 401 F.3d at 1287. Rodriguez,

however, cannot bear that burden here because all of his arguments are without

merit. First, because RIDA applies to the case, the IJ was free to base his

credibility finding on inconsistencies that did not go the heart of Rodriguez’s

claim. See 8 U.S.C. §§ 1158(b)(1)(B)(iii). Second, while Rodriguez in his brief

argues that “relevant and persuasive evidence” explained the alleged discrepancies,

he does not, and cannot, point to any such evidence. Third, the discrepancies were

not due to his wife’s lack of personal knowledge of the details of the incidents.

The discrepancies concerned facts squarely within her personal knowledge,

namely, where she was staying on December 20, 2005, and at what time Rodriguez

returned there that night. Moreover, her testimony does not indicate that it was

based on anything other than her personal knowledge of those facts. Fourth, even

if Rodriguez’s own testimony closely mirrored his application addendum

statement, that consistency did not negate the inconsistencies between his and his

wife’s testimony. And lastly, given that Rodriguez bore the burden of establishing

that he was entitled to relief, it was not the IJ’s duty to bring the discrepancies to

the attention of the witnesses. See Al Najjar, 257 F.3d at 1284. These were not

mere ambiguities that reasonably called for clarification on the record.

8
Because Rodriguez cannot establish that the adverse credibility finding was

not based on substantial evidence, and given that such a finding is sufficient to

support the denial of asylum, and, necessarily, withholding of removal, we deny

the petition regarding this claim. See Forgue, 401 F.3d at 1287, 1288 n.4.

PETITION DISMISSED IN PART, DENIED IN PART.

9