FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12210

Non-Argument Calendar

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Agency Nos. A99-924-945

A99-924-946

JESUS MANUEL SAYOL-HERNANDEZ,

LUIMAR YELITZA NAHR-YAYA,

LUIS MANUEL SAYOL,

MIGUEL VICENTE SAYOL-NAGR,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 17, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Jesus Manuel Sayol-Hernandez, his wife Luimar Yelitza Nahr-Yaya, and

their two children, all natives and citizens of Venezuela, seek review of the BIA’s

order affirming the IJ’s removal order and denial of their claims for asylum and

withholding of removal under the Immigration and Nationality Act, 8 U.S.C. §§

1158 and 1231, and relief under the Convention Against Torture (CAT), 8 C.F.R.

§ 208.16(c). Sayol contends that his family is eligible for asylum, despite the fact

that he failed to apply for it within a year of entering the United States, because he

meets the extraordinary circumstances exception to that rule. He further contends

that his family is entitled to asylum and withholding of removal because of past

persecution and a well-founded fear of future persecution should he return to

Venezuela. Finally, Sayol argues that the IJ failed to give adequate consideration

to his CAT claim.

I.

We review only the BIA’s decision, but to the extent that the BIA adopts the

IJ’s reasoning, we review the IJ’s decision as well. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Here, although the BIA did not expressly adopt the

IJ’s decision, the BIA relied on the IJ’s reasoning. Accordingly, we review both

decisions. See id.

We review the BIA and IJ’s determinations using the substantial evidence

test, which requires us to uphold their decisions if they are “supported by

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reasonable, substantial, and probative evidence on the record considered as a

whole.” Rodriguez Morales v. United States Att’y Gen., 488 F.3d 884, 890 (11th

Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815

(1992)). “To reverse the [BIA’s] fact findings, we must find that the record not

only supports reversal, but compels it.” Mendoza v. United States Att’y Gen., 327

F.3d 1283, 1287 (11th Cir. 2003); see also Elias-Zacharias, 502 U.S. at 481 n.1,

112 S. Ct. at 815 n.1.

II.

Sayol first contends that his family qualifies for asylum under the

Immigration and Nationality Act, 8 U.S.C. § 1158. Any alien who arrives in the

United States may apply for asylum; however, under 8 U.S.C. § 1158(a)(2)(B), the

alien must “demonstrate[] by clear and convincing evidence that the application

has been filed within 1 year after the date of the alien’s arrival in the United

States.” The law provides an exception to this if the alien can satisfy the Attorney

General that changed or extraordinary circumstances prevented filing within the

one-year deadline. See 8 U.S.C. § 1158(a)(2)(D).

Sayol argues that, although he arrived in the United States in 2003 and filed

for asylum in 2006, he meets the “extraordinary circumstances” exception to the

one-year rule. The IJ and BIA disagreed with Sayol and denied his application for

asylum as untimely. This Court lacks subject-matter jurisdiction to review those

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decisions.

“No court shall have jurisdiction to review any determination of the

Attorney General” regarding the timeliness of an alien’s application or whether an

alien qualifies for an exception to the one-year deadline. 8 U.S.C. § 1158(a)(3);

see also Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 956 (11th Cir.

2005 (holding that 8 U.S.C. § 1158(a)(3) removes our jurisdiction to review

findings concerning the timeliness of an alien’s application or the existence of

extraordinary circumstances).

We do not have jurisdiction to evaluate the IJ or BIA’s finding that Sayol’s

asylum application was untimely. Thus, we dismiss the petition as to Sayol’s

claim for asylum.

III.

Sayol contends that his family is entitled to withholding of removal under 8

U.S.C. § 1231(b)(3)(A). An alien can avoid removal if the Attorney General

decides that the “alien’s life or freedom would be threatened in [his] country

because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien bears the burden

to show that it is “more likely than not []he will be persecuted or tortured upon

being returned to [his] country.” Sepulveda v. United States Att’y Gen., 401 F.3d

1226, 1232 (11th Cir. 2005) (quotation omitted).

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Sayol, a machinist by trade, testified that between 1992 and 1999 he also

worked for the Venezuelan military as an undercover investigator. Sayol stated

that he investigated individuals who opposed the Venezuelan government,

including Hugo Chavez. His duties included gathering information, taking pictures

and videos, and acting as a driver and bodyguard for his superiors. Sayol stated

that some of the individuals he investigated were arrested, but that he was unaware

of what happened to them after that. After Chavez was elected to the presidency in

1998, Sayol quit working for the military because he believed that the new

government had learned of his activities in support of the old one. Sayol testified

that he began receiving threatening telephone calls, possibly from the “Bolivarian

Circles” group, in 1999, though his wife testified that the threats began in 2002. In

response to the calls, Sayol claimed to have moved his family several times within

Caracas, but his wife stated that they never moved before coming to the United

States in 2003.

Sayol testified that in late 2002 an unknown gunman fired shots at his car

after he and his son attended a baseball game. Sayol also testified that he worked

as a security guard at a number of opposition marches in 2002 and was hit with

sticks or stones, causing minor injuries. After these incidents, Sayol fled with his

wife and children to the United States, leaving behind a number of other close

relatives who he testified have not been harmed. At the hearing before the IJ,

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Sayol offered background materials on Venezuela and identification documents

that indicate that Sayol had worked for the military.

The IJ and BIA ruled that Sayol’s testimony was not credible because of

discrepancies between his testimony and his wife’s, and because his stated role in

the military was too vague. Sayol has waived any challenge to the adverse

credibility determination in this case by failing to argue the issue on appeal. See

Sepulveda, 401 F.3d at 1228 n.2 (noting that when a party fails to offer argument

on an issue, it is abandoned).

While credible testimony alone can be sufficient to establish eligibility for

withholding of removal, “[c]onversely, an adverse credibility determination alone

may be sufficient to support [its] denial.” Ruiz v. United States Att’y Gen., 440

F.3d 1247, 1255 (11th Cir. 2006) (quotation omitted). But “[i]f an applicant

produces evidence beyond his own testimony, it is not sufficient for the IJ to rely

solely on an adverse credibility determination in those instances.” Id.; see also

Yang v. United States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (“The

weaker the applicant’s testimony, however, the greater the need for corroborative

evidence.”).

In this case, the corroborative evidence is not compelling. Sayol’s burden of

proof is to demonstrate that it is more likely than not that he will be persecuted or

tortured if returned to Venezuela. See Sepulveda, 401 F.3d at 1232. Though Sayol

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produced documents establishing that he worked for the Venezuelan military, there

is no evidence beyond Sayol’s testimony that he investigated or participated in the

alleged investigation of Chavez. Further, the 2006 State Department Country

Report for Venezuela indicates that there have been no reports of the Venezuelan

government or its agents engaging in politically motivated killings. The Country

Report is supported by the fact that Sayol’s parents, sister, brother, and nephew

still live in Venezuela and have not been harmed.

In light of the IJ’s finding that Sayol’s testimony was not credible and the

weakness of the corroboration for Sayol’s claims, substantial evidence supports the

IJ’s and BIA’s denial of withholding of removal. Accordingly, we deny the

petition as to this issue.

IV.

Lastly, Sayol contends that his family is entitled to relief under the

Convention Against Torture, 8 C.F.R. § 208.16(c)(2). Specifically, Sayol argues

that this Court remands cases where the IJ and BIA have failed to make adequate

findings or give reasoned consideration to the evidence that the alien has offered

under the CAT. See, e.g., Mezvrishvili v. United States Att’y Gen., 467 F.3d 1292,

1297 (11th Cir. 2006) (vacating BIA and IJ findings that failed to offer “a reasoned

decision in consideration of [the petitioner’s] credible testimony”).

Sayol, however, failed to argue to the BIA that the IJ’s findings were not

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based on reasoned consideration. In fact, Sayol did not raise the CAT issue at all

in his appeal to the BIA. “[W]e lack jurisdiction to consider claims that have not

been raised before the BIA.” Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir.

2003). Accordingly, we dismiss the petition as to the issue of relief under the

CAT.

DENIED IN PART, DISMISSED IN PART.

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