FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15435

Non-Argument Calendar

________________________

BIA No. A79-682-918

RICARDO FRAZILE, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 6, 2007)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Petitioner Ricardo Frazile (“Frazile”), a native and citizen of Haiti,
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proceeding through counsel, seeks review of the Board of Immigration Appeals’s

(“BIA”) decision adopting and affirming the immigration judge’s (“IJ”) order

denying his application for asylum and withholding of removal. For the first time,

on appeal, Frazile also asserts that the IJ violated his due process right to a hearing

and that he was entitled to relief under the doctrine of imputed political opinion.

I.

The IJ must make an explicit credibility determination. Yang v. U.S. Att’y

Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). In the present case, the IJ made

specific adverse credibility findings, noting that she did not “find [Frazile’s]

testimony credible, and his testimony [was] not sufficiently detailed, consistent, or

believable to provide a plausible and coherent account of the basis for his fears

. . . .” The only evidence that Frazile introduced, the birth certificates, was also

considered by the IJ.

Moreover, “this court may not substitute its judgment for that of the BIA

with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 818 (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. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (internal quotation

marks and citation omitted). An adverse credibility determination alone may be
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the basis for denying an asylum application if the applicant produces no evidence

other than his testimony. Id. If the applicant produces evidence then it must also

be considered by the IJ. Id.

Frazile’s internally inconsistent testimony and the discrepancies between his

application and testimony are not merely incidental to his claim. Frazile’s claim is

premised on his need to leave Haiti immediately after participating in a

demonstration in November 1999. Yet, he arrived in the United States in 2002 and

could not explain what occurred during the three intervening years. He also

testified to leaving Haiti in 2001 and on September 9, 2002. Additionally, he first

testified that he left Haiti immediately after the demonstration and then stated that

he had received medical care for three days. He also gave three different dates for

when the demonstration was held. Frazile testified that he was vehemently

opposed to the Artistide government, yet lacked rudimentary knowledge of Haitian

politics, being unable to distinguish a department from a town or city and not

understanding the duties of a senator. Additionally, the sole election in which he

claimed to have voted does not appear to have occurred.

Accordingly, we conclude from the record that the IJ’s credibility decision

was supported by specific, cogent reasons and was based on substantial evidence. 

See Forgue, 401 F.3d at 1287.

II.
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To the extent that the BIA’s decision was based on a legal determination,

review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.

2001). The BIA’s factual determinations are reviewed under the substantial

evidence test, and 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, 1283-84 (11th Cir. 2001) (quotation

marks and citation omitted). The substantial evidence test is “deferential” and does

not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. Office of U.S.

Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). When the BIA issues a decision,

we review only that decision, except to the extent that the BIA expressly adopts the

IJ’s decision. Al Najjar, 257 F.3d at 1284. Here, because the BIA expressly

adopted the IJ’s decision, we review the IJ’s decision.

“To reverse the IJ’s fact findings, 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) (considering withholding of removal claim). 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).

An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or
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Secretary of the Department of Homeland Security has discretion to grant asylum

if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1). A “refugee” is defined in the INA as an individual who is unwilling

or unable to return to his country of nationality “because of persecution or a wellfounded 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 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 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); see Al Najjar, 257 F.3d at 1287. “Demonstrating such a

connection requires the alien to present specific, detailed facts showing a good

reason to fear that he or she will be singled out for persecution on account of [a

statutory factor].” Al Najjar, 257 F.3d at 1287 (internal quotation marks and

citation omitted) (emphasis in original).

Neither the INA nor the regulations define “persecution,” but we have

indicated that “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and that mere harassment

does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
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1231 (11th Cir. 2005) (quotation marks, citation, and alteration omitted). “Not all

exceptional treatment is persecution.” Gonzalez v. Reno, 212 F.3d 1338, 1355

(11th Cir. 2000). For example, menacing telephone threats do not rise to the level

of past persecution. Sepulveda, 401 F.3d at 1231. Furthermore, a five-day

detention during which an alien is not harmed does not compel a finding of past

persecution. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006), cert.

denied, 127 S. Ct. 1124 (Jan. 16, 2007).

The asylum applicant does not need to show that he will be singled out for

persecution if he establishes a “pattern or practice” in his country of “persecution

of a group of persons similarly situated” on account of a protected ground and a

reasonable fear of persecution based on his inclusion in that group. 8 C.F.R.

§ 208.13(b)(2)(iii).

“If the alien establishes past persecution in his country based on a protected

ground, it is presumed that his life or freedom would be threatened upon return to

his country unless the INS [or DHS] shows by a preponderance of the evidence

that, among other things, (1) the country’s conditions have changed such that the

applicant’s life or freedom would no longer be threatened upon his removal; or (2)

that the alien could avoid a future threat to his life or freedom by relocating to

another part of the proposed country of removal, and it would be reasonable to

expect him to do so.” Mendoza, 327 F.3d 1287.
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An applicant may establish a “well-founded fear” by demonstrating that his

fear of persecution is “subjectively genuine and objectively reasonable.” Al

Najjar, 257 F.3d at 1289.

An alien seeking withholding of removal under the INA must show that his

“life or freedom would be threatened in that country because of his race, religion,

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

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b). The alien must 

demonstrate that he “more-likely-than-not would be persecuted or tortured upon

his return to the country in question.” Mendoza, 327 F.3d at 1287. We have

explained that this burden of proof is “more stringent” than the burden to establish

asylum eligibility. Sepulveda, 401 F.3d at 1232.

After reviewing the record, we conclude that substantial evidence supports

the denial of relief. The only evidence introduced, the birth certificates and the

country report, also support the denial of relief. The birth certificates were

inconsistent with Frazile’s testimony and contained no suggestion of past

persecution or a well-founded fear of future persecution, and the unrefuted country

report establishes that relocation was possible. See Mendoza, 327 F.3d at 1287. 

Therefore, we conclude that Frazile has not met the high burden necessary to

support reversal on his asylum and withholding of removal claims. See id.

III.
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Generally, review of constitutional challenges is de novo. Lonyem v. U.S.

Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).

“The exhaustion requirement applicable to immigration cases is found in 8

U.S.C. § 1252(d)(1), which provides that ‘[a] court may review a final order of

removal only if . . . the alien has exhausted all administrative remedies available to

the alien as of right.’” Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003). We

view that requirement as jurisdictional and, therefore, lack “jurisdiction to consider

claims that have not been raised before the BIA.” Id. Constitutional challenges

and some due process claims do not require exhaustion because the BIA does not

have the authority to adjudicate those claims. Id. at 1325. Nevertheless, where the

BIA can provide a remedy to the constitutional claim, “the exhaustion requirement

applies with full force.” Id. (holding that an alien should have exhausted his due

process claim that the IJ’s and BIA’s application of an immigration statute violated

the Constitution, because “[i]t was within the BIA’s authority to reconsider and

change its decision”).

In the present case, the record demonstrates that Frazile failed to exhaust his

administrative remedies regarding whether his due process right to a hearing was

violated. He raised this issue for the first time on appeal to this court and did not

provide the BIA with an opportunity to provide a remedy. Thus, the exhaustion

requirement applies to Frazile’s due process claim and that portion of his petition
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for review is dismissed. See Sundar, 328 F.3d at 1323, 1325. Additionally, he

failed to exhaust his administrative remedies regarding whether he was entitled to

relief under the doctrine of imputed political opinion. He raised this issue for the

first time on appeal to this court. Therefore, we also dismiss that portion of his

petition for review. See Sundar, 328 F.3d at 1323.

PETITION DENIED IN PART, DISMISSED IN PART.