Vera, et al v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-60760
Summary Calendar
PABLO VERA; NORMA L. DUARTE PRADO;
JUAN PABLO VERA DUARTE,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 355 181
BIA No. A78 355 182
BIA No. A78 355 183
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pablo Vera, his wife Norma Duarte Prado, and his son Juan Pablo
Vera Duarte, natives and citizens of Colombia, petition for review
of the order of the Board of Immigration Appeals dismissing their
appeal from the immigration judge’s decision denying their
application for asylum and withholding of removal and for relief
under the Convention Against Torture (CAT). The petitioners do not

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specifically challenge the denial of relief insofar as they sought
withholding of removal or relief under the CAT. Therefore, these
claims are deemed abandoned. See Rodriguez v. INS, 9 F.3d 408, 414
n.15 (5th Cir. 1993). Accordingly, we will review only the denial
of the application for asylum.
The finding that an alien is not eligible for asylum will be
upheld if it is supported by substantial evidence. Chun v. INS, 40
F.3d 76, 78 (5th Cir. 1994). The substantial-evidence standard
requires that the agency decision be based on the record evidence
and that the decision be substantially reasonable.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Under
this standard, the agency’s determination will be affirmed “unless
the evidence compels a contrary conclusion”. Id.
Vera is not only a citizen of Colombia, but also a dual
national of Poland, as his mother was born there. As a result, the
BIA concluded that the petitioners did not qualify as “refugees”
under 8 U.S.C. § 1101(a)(42)(A) because their status as nationals
of Poland allowed them to seek protection there. The petitioners
do not dispute that Vera is a dual national of Poland and Colombia.
Instead, they now claim the statutory definition of “refugee” did
not require them to show they would face persecution in all of the
countries in which they were nationals. As the Attorney General
correctly contends, we lack jurisdiction to review this claim
because it was not exhausted before the BIA. See Wang v. Ashcroft,

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260 F.3d 448, 452-53 (5th Cir. 2001); Goonsuwan v. Ashcroft, 252
F.3d 383, 387 (5th Cir. 2001).
The petitioners also claim: the statutory definition of
“refugee” is unconstitutionally void for vagueness; and the
application of this provision violated their due-process and equal-
protection rights. Such claims may be raised for the first time in
a petition for review. See Nehme v. INS, 252 F.3d 415, 422 (5th
Cir. 2001).
The petitioners assert their due–process rights were violated
because the BIA should have been required to determine whether they
may be properly removed to Poland. The petitioners have not shown,
however, that they were substantially prejudiced by the procedure
applied. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
The petitioners maintain their equal-protection rights were
violated because stateless aliens, who allegedly are similarly
situated to them, are entitled to a determination of their
eligibility for asylum under the “safe third country” exception to
the asylum requirements, under 8 U.S.C. § 1158(a)(2)(A). The
petitioners, who apparently have an unfettered right to travel to
Poland, have not shown they are similarly situated to stateless
aliens. See City of Cleburne, Tex. v. Cleburne Living Center, 473
U.S. 432, 439 (1985). In any event, there is a rational basis for
the distinction between the petitioners and stateless aliens:
Unlike the former, the latter have no second country of nationality

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to which to turn. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321,
332 (5th Cir. 2004).
As for the third new claim, the statutory definition of
“refugee” in 8 U.S.C. § 1101(a)(42)(A) is not void for vagueness
simply because it does not explicitly address whether a dual
national must demonstrate past persecution, or a well-founded fear
thereof, in multiple countries of nationality. See Boutilier v.
INS, 387 U.S. 118, 123 (1967); Groome Res., Ltd. v. Parish of
Jefferson, 234 F.3d 192, 217 (5th Cir. 2000).
DENIED

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