FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 11, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-13086

Non-Argument Calendar

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BIA No. A78-407-593 

SANYDE GEFFRARD,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review of an Order of the

Board of Immigration Appeals

_________________________

(July 11, 2005)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Sanyde Geffrard, proceeding pro se, petitions for review of the Board of

Immigration Appeals’ (“BIA’s”) decision affirming, without opinion, the

immigration judge’s (“IJ’s”) denial of her application for asylum and withholding
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of removal under the Immigration and Nationality Act (“INA”), and relief under

the United Nations Convention Against Torture and Other Cruel, Inhumane or

Degrading Treatment or Punishment (“CAT”). Because Geffrard’s removal

proceedings commenced after April 1, 1997, the permanent rules of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, 110 Stat. 3009 (1996) (hereinafter “IIRIRA”), apply. See GonzalezOropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

A. IJ’s Refusal to Admit Untranslated Documents

On appeal, Geffrard first argues that the IJ erred by refusing to accept the

death certificate of Geffrard’s grandmother into evidence, or, alternatively,

granting Geffrard a continuance in order to allow the document to be translated

and authenticated. According to Geffrard, the death certificate was necessary in

order to corroborate her testimony, and the IJ’s failure to grant a continuance was

a violation of her Fifth Amendment due process rights. Geffrard argues that her

grandmother’s death certificate, as well as the documentary evidence regarding her

employment with the Haitian Bureau of Election Controls (“BEC”), “could [have]

negate[d] her questionable testimony,” and, therefore, the IJ’s refusal to admit it

was a due process violation. 
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We may review a final order of removal only if the alien has exhausted all

administrative remedies available to her as of right. See INA § 242(d)(1), 8

U.S.C. § 1252(d)(1). Because § 1252(d)(1) imposes a jurisdictional requirement,

we lack jurisdiction to review claims that were not raised before the BIA. See

Fernandez-Bernal v. Att’y Gen. of United States, 257 F.3d 1304, 1317 n.13 (11th

Cir. 2001). We have stated that exhaustion may not be required where the claim at

issue is a constitutional challenge to the INA or a due process claim that the BIA

does not have the authority to address. Sundar v. INS, 328 F.3d 1320, 1325 (11th

Cir. 2003). However, if the BIA has the authority to adjudicate the claim, then

“the exhaustion requirement applies with full force.” Id.; Rashtabadi v. INS, 23

F.3d 1562 (9th Cir. 1994) (holding that it lacked jurisdiction to review the

petitioner’s claims because they were allegations of procedural errors that could

have been corrected by, but were not presented to, the BIA). 

The BIA has jurisdiction over appeals from final removal orders of the IJ,

and it “may review questions of law, discretion, and judgment and all other issues

in appeals from decisions of immigration judges de novo.” 8 C.F.R.

§ 1003.1(b)(3), (d)(3)(ii). Any foreign-language document offered by a party in a

removal proceeding must be accompanied by a certified English translation. 8

C.F.R. § 1003.33. The IJ may set and extend the time limits for the filing of
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documents and may grant a motion for continuance where good cause is shown. 8

C.F.R. §§ 1003.29 & 1003.31(c). An alien may file a motion to reopen with the

BIA in order to present evidence that was unavailable at the time of her removal

proceedings. See INA § 240(c)(6), 8 U.S.C. § 1229a(c)(6); 8 C.F.R.

§ 1003.2(c)(1).

We conclude that we do not have jurisdiction to consider Geffrard’s claim

that the IJ erred by refusing to accept her additional documentary evidence

because she failed to exhaust her administrative remedies with respect to this

issue. Because the documents were untranslated at the time of the hearing, they

were inadmissible at that time and could have been admitted into evidence only if

the IJ chose to exercise its discretion and grant Geffrard a continuance. See 8

C.F.R. §§ 1003.19, 1003.33. Whether the IJ abused its discretion in refusing to

grant a continuance is an issue that the BIA is authorized to review, and, therefore,

Geffrard failed to exhaust that claim by not raising it in either her direct appeal to

the BIA or in a motion to reopen. See 8 C.F.R. §§ 1003.1(c)(3)(ii), 1003.2(c)(1).

B. Asylum and Withholding of Removal under the INA

Geffrard next argues that the IJ erred by finding that she failed to meet her

burden of proving eligibility for asylum based on a well-founded fear of

persecution on account of her imputed political opinion. According to Geffrard,
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the attack on her uncle, the murder of her grandmother, and the threats

communicated to her by the Fanmi Lavalas (“FL”) political party, had a traumatic

effect on her and rose to the level of persecution. Additionally, Geffrard argues

that she has satisfied the more exacting burden of proving entitlement to

withholding of removal. 

When the BIA summarily affirmed the IJ’s decision without opinion, the

IJ’s decision became the final removal order subject to review. See Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003) (citing 8 C.F.R.

§ 3.1(a)(7), now found at 8 C.F.R. § 1003.1(a)(7)). The BIA’s factual

determinations are reviewed under “the highly deferential substantial evidence

test,” which requires us to “view the record evidence in the light most favorable to

the [BIA]’s decision and draw all reasonable inferences in favor of that decision.” 

Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We

“must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). 

The Attorney General has discretion to grant asylum if an alien meets the

INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA

defines “refugee” as follows:
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[A]ny person who is outside any country of such

person’s nationality . . . 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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the

burden of proving 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), (b); Al Najjar, 257 F.3d at 1287.

We conclude that the IJ’s findings are supported by substantial evidence,

and a reasonable factfinder would not be compelled to conclude that Geffrard

satisfied her burden of proving asylum eligibility. Although Geffrard’s testimony,

if credible, may have entitled her to relief, a reasonable factfinder would not have

been compelled to believe her testimony because: (1) it conflicted with the

statements that she made in her initial interview with the Immigration and

Naturalization Service (“INS”) officer; (2) she became defensive and evasive

when asked about her political affiliation; and (3) she gave inconsistent statements
7

regarding the elections that she worked on and the compensation that she received. 

Because Geffrard has failed to demonstrate asylum eligibility, she also has failed

to meet the more exacting standard for demonstrating entitlement to withholding

of removal. See Al Najjar, 257 F.3d at 1292-93.

C. Withholding of Removal under CAT

Finally, Geffrard argues that the IJ erred by finding that she had failed to

meet her burden of proving entitlement to CAT relief. According to Geffrard, the

beating of her uncle and the murder of her grandmother rose to the level of torture,

as defined by CAT, and, therefore, it is likely that she too will be tortured if she

returns to Haiti. Geffrard argues that her fear of torture is supported by the 2001

Country Reports on Human Rights Practices for Haiti (hereinafter “Country

Report”), which stated that the FL-controlled Haitian government frequently

commits “serious human rights abuses.”

The IJ’s determination that an alien is not entitled to withholding of removal

under CAT is reviewed under the substantial evidence test. See Al Najjar, 257

F.3d at 1283-84. In order to demonstrate entitlement to withholding of removal

under CAT, an alien must demonstrate that it is more likely than not that she

would be tortured if removed to her country of origin. 8 C.F.R. § 208.16(c)(2);
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see also Al Najjar, 257 F.3d at 1303. Evidence relevant to a determination of

whether it is more likely than not that an alien will be tortured in the country of

removal, includes, but is not limited to, evidence of: (1) past torture suffered by

the alien; (2) the possibility of relocation within the removal country; (3) human

rights abuses in the removal country; and (4) overall conditions in the country of

removal. 8 C.F.R. § 208.16(c)(3)(i)-(iv). 

[F]or an act to constitute “torture” under CAT, it must

be: (1) an act causing severe physical or mental pain or

suffering; (2) intentionally inflicted; (3) for an illicit or

proscribed purpose; (4) by or at the instigation of or with

the consent or acquiescence of a public official who has

custody or physical control of the victim; and (5) not

arising from lawful sanctions. 

Cadet v. Bulger, 377 F.3d 1173, 1181 (11th Cir. 2004). 

We conclude that the evidence presented in this case would not compel a

reasonable factfinder to conclude that it is more likely than not that Geffrard

would be tortured if removed to Haiti. Accordingly, we deny Geffrard’s petition

for review.

PETITION DENIED.