Hernandez v. U.S. Attorney Gen.

1

JAVIER RAMIREZ HERNANDEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 23-11736

United States Court of Appeals, Eleventh Circuit

February 27, 2024

DO NOT PUBLISH

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A216-371-185 Before JORDAN, LAGOA, and MARCUS, Circuit Judges.

PER CURIAM

Javier Ramirez-Hernandez^[1] seeks review of the Board of Immigration Appeals' ("BIA") final order affirming the Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"). He argues that: (1) the BIA erred in affirming the IJ's decision to deny his application for asylum because the IJ, among other things, made an unsupported adverse credibility finding, relied upon a legally erroneous presumption, and failed to adequately consider country conditions evidence; and (2) the BIA erred in affirming the IJ's denial of CAT protection, because it failed to adequately address the IJ's conclusions about the evidence in the record.^[2] After careful review, we deny the petition.

I.

We review the BIA's decision as the final judgment, but where the BIA expressly adopted the IJ's decision or agreed with its reasoning, we review both decisions. Gonzalez v. U.S Att'y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We do not consider issues that were not reached by the BIA. Id. Generally, courts and agencies need not make findings on issues if those findings are unnecessary to the results they reach. INS v. Bagamasbad, 429 U.S. 24, 25 (1976). Further, issues not briefed to us are deemed abandoned. Campbell, 26 F.4th at 871; Ruga v. U.S. Att'y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014).

"A petitioner contesting a final order of removal must exhaust the administrative immigration process before he may be heard in federal court." Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860, 866 (11th Cir. 2018). "[F]ailure to raise an issue to the BIA constitutes a failure to exhaust." Id. Exhaustion under the Immigration and Nationality Act ("INA") is not jurisdictional, but it nonetheless must be enforced when a party asserts it. Kemokai v. U.S. Att'y Gen., 83 F.4th 886, 891 (11th Cir. 2023) (citing Santos-Zacaria v. Garland, 598 U.S. 411 (2023)).

In a petition for review of a BIA decision, we review legal conclusions de novo. Perez-Zenteno v. U.S. Att'y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Whether an asserted group qualifies as a particular social group under the INA is a question of law. Id. For legal determinations, we defer to the agency's reasonable determination of ambiguous statutory terms. Id.

We review the agency's factual findings, including adverse credibility determinations, for substantial evidence. Lyashchynska v. U.S. Att'y Gen., 676 F.3d 962, 967 (11th Cir. 2012). Under this standard, we view the evidence in the light most favorable to the agency's decision, draw all reasonable inferences in favor of that decision, and affirm the BIA's decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id.; Perez-Zenteno, 913 F.3d at 1306. To reverse the factual findings, we must find that the record compels reversal. Lyash-chynska, 676 F.3d at 967. "The trier of fact must determine credibility, and [we] may not substitute [our] 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. 2014).

We review the BIA's factual determinations for the denial of CAT relief under the substantial evidence standard, where we will reverse the BIA only where the record compels it. Edwards v. U.S. Att'y Gen., 56 F.4th 951, 966 (11th Cir. 2022).

A noncitizen's credible testimony may be sufficient to sustain the burden of proof without corroboration. 8 U.S.C. § 1158(b)(1)(B)(ii). Conversely, "the IJ's [or BIA's] extremely detailed adverse credibility determination alone may be sufficient to support" the denial of an asylum seeker's application. D-Muhumed, 388 F.3d at 818-19; see also Chen v. U.S. Att'y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (stating that "[a]n IJ's denial of asylum . . . can be supported solely by an adverse credibility determination"). In assessing the credibility of an applicant's testimony, the IJ should consider the totality of the circumstances. 8 U.S.C. § 1158(b)(1)(B)(iii).

To be considered an adverse credibility determination, the IJ or BIA must state explicitly that the applicant's testimony was not credible. See Yang v. U.S. Att'y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Further, "the IJ [or BIA] must offer specific, cogent reasons for an adverse credibility finding." Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005); see also Chen, 463 F.3d at 1231. The agency may rely on any inconsistency, regardless of its relevance to the applicant's claim, to support an adverse credibility finding. Chen, 463 F.3d at 1233. An applicant's omissions can be used as evidence to support an adverse credibility finding. See Xia v. U.S. Att'y Gen., 608 F.3d 1233, 1240 (11th Cir. 2010).

Once the IJ or BIA has offered specific and cogent reasons, the burden shifts to the applicant to show that the IJ's or BIA's credibility decision "was not supported by specific, cogent reasons or was not based on substantial evidence." Chen, 463 F.3d at 1231 (citing Forgue, 401 F.3d at 1287). However, an applicant's explanation for omissions or inconsistencies must compel the conclusion that he is credible. Shkambi v. U.S. Att'y Gen., 584 F.3d 1041, 1051 (11th Cir. 2009). This means that an applicant's provision of tenable explanations for aspects of his claim that the agency found incredible may not compel the reversal of the credibility finding, especially in the absence of corroborating evidence. Chen, 463 F.3d at 1233. The weaker an applicant's testimony, the greater the need for corroborative evidence. Li Shan Chen v. U.S. Att'y Gen., 672 F.3d 961, 964 (11th Cir. 2011). "[T]he mere fact that the record may support a contrary finding is not enough to justify a reversal of the finding." Xia, 608 F.3d at 1239-41 (quotations omitted and alterations accepted) (holding that an adverse-credibility determination was supported where the applicant's testimony "included at least one internal inconsistency (how old she was when she had the abortion) and one omission (identifying data on the abortion operations certificate)" and where the petitioner did not provide corroborating evidence that would have rebutted these inconsistencies and omissions).

II.

First, we are unpersuaded by Ramirez-Hernandez's claim that the BIA erred in determining that he was not eligible for asylum. An applicant for asylum must prove that he is a "refugee" as defined by statute. 8 U.S.C. § 1158(b)(1)(A). A "refugee" includes any person who is unwilling to return to, and is unable or unwilling to avail himself of the protection of, the country of his nationality or where he last habitually resided, 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 applicant bears the burden of proving qualification as a refugee. 8 U.S.C. § 1158(b)(1)(B)(i); Kazemzadeh v. U.S. Att'y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009).

"To establish asylum based on past persecution, the applicant must prove (1) that []he was persecuted, and (2) that the persecution was on account of a protected ground." Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We've indicated that "persecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and that [m]ere harassment does not amount to persecution." Sepulveda U.S. Att'y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted).

An applicant must also establish a nexus between the feared persecution and a protected ground by demonstrating that one of the enumerated grounds was or will be at least one central reason for persecuting him. 8 U.S.C. § 1158(b)(1)(B)(i). "[E]vidence that either is consistent with acts of private violence . . ., or that merely shows that a person has been the victim of criminal activity, does not constitute evidence of persecution based on a statutorily protected ground." Ruiz v. U.S. Att'y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Additionally, "[a]n applicant for asylum who alleges persecution by a private actor must prove that his home country is unable or unwilling to protect him." Ayala v. U.S. Att'y Gen., 605 F.3d 941, 950 (11th Cir. 2010).

An applicant who cannot demonstrate past persecution also has the burden of showing that it would be unreasonable for the noncitizen to relocate in the home country, unless the persecution is by the government or is government-sponsored. 8 C.F.R. § 208.13(b)(3)(ii).

Here substantial evidence supports the IJ's decision to deny Ramirez-Hernandez's asylum application and the BIA's decision to affirm. For starters, the IJ and BIA found that Ramirez-Hernandez was not entitled to relief because he did not testify credibly, and the agency provided specific and cogent reasons for its adverse credibility finding. Forgue, 401 F.3d at 1287. Specifically, the BIA based its affirmance of this finding on Ramirez-Hernandez's omission from his asylum application of two major instances of alleged harm he suffered in Mexico -- being robbed by police officers and being the victim of an attempted robbery at the factory where he worked -- that he later testified about before the IJ. Under our case law, these kinds of omissions may be used to support an adverse...