Patrice Odinga Maison v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10858
Non-Argument Calendar
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Agency No. A079-415-530
PATRICE ODINGA MAISON,
lllllllllllllllllllllllllllllllllllllll lPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 31, 2012)
Before DUBINA, Chief Judge, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Patrice Odinga Maison, a native and citizen of Guyana, seeks review of the
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Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) denial of his application for asylum, pursuant to the Immigration
and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), withholding of removal
under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal under
the United Nations Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c).
On review, Maison argues that (1) the BIA’s and IJ’s adverse-credibility
determination cannot be supported by substantial evidence, (2) the BIA and IJ
erred in finding that a July 1999 incident, when Maison was attacked in Guyana,
did not amount to past persecution, (3) the IJ erred by failing to consider that the
“on account of” prong was satisfied based on imputed political opinion, and (4) he
established a well-founded fear of future persecution. The government responds
that Maison failed to exhaust these claims.
As an initial matter, although Maison applied for CAT relief and raised this
issue in his brief before the BIA, he did not raise this claim before us on review.
Accordingly, the issue is abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (when an appellant fails to offer argument on an
issue, that issue is abandoned).
I. Exhaustion
We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S.
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Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We may review a final order of
removal only if the alien has exhausted all administrative remedies available to
him as a matter of right. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion
requirement is jurisdictional and precludes review of a claim that was not
presented to the BIA. Amaya-Artunduaga, 463 F.3d at 1249-50.
In order to properly raise a claim before the BIA, the petitioner must
mention the issue and discuss its merits, or at least contest the basis for the IJ’s
decision. See Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006) (holding
that, when a claim was mentioned in a petitioner’s brief to the BIA and was
specifically requested as relief, it was properly exhausted); see also Montano
Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008) (holding
that exhaustion requires only that the petitioner argued the core issue before the
BIA, the petitioner need not have engaged the IJ’s reasons for denying relief, and
“hyper-technical[]” jurisdictional arguments from the government regarding the
exhaustion requirement were unavailing).
Maison exhausted his claims regarding the adverse-credibility
determination, past persecution, and a well-founded fear of future persecution. He
asserted his claims regarding the adverse-credibility finding and a well-founded
fear of future persecution in his brief to the BIA by raising the core issue.
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Montano Cisneros, 514 F.3d at 1228 n.3. Moreover, Maison contested the IJ’s
resolution of his past-persecution claim in his Notice of Appeal to the BIA, which
was sufficient to exhaust this claim. Alim, 446 F.3d at 1253-54; Montano
Cisneros, 514 F.3d at 1228 n.3 (rejecting the government’s “hyper-technical”
jurisdictional requirements regarding administrative exhaustion requirements).
Maison, however, failed to exhaust his claim that the “on account of” prong
was satisfied on the basis of imputed political opinion because this claim was not
raised before the BIA. Accordingly, we dismiss Maison’s claim based on imputed
political opinion, but address the other claims.
II. Adverse-Credibility Finding
Maison argues that the record does not contain substantial evidence to
support the BIA’s adverse-credibility determination based on the BIA’s findings
that (1) his father’s declaration about the July 1999 incident contradicted Maison’s
testimony that he was alone when he was attacked, and (2) it was “implausible”
that his father, a journalist and opposition reporter, did not write an article in the
newspaper regarding the July 1999 attack on Maison. Further, the contradiction
from the credible-fear interview regarding whether Maison had a brother should
not, by itself, sustain an adverse-credibility finding because giving false
information to immigration authorities to avoid deportation can be consistent with
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a fear of persecution.
We review credibility determinations under the substantial-evidence test.
Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). The trier of
fact determines 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. 2004). We view the evidence in the light most favorable to the
Agency’s decision and draw all reasonable inferences in favor of that decision.
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). In fact, we
will reverse the IJ’s credibility findings “only if the evidence compels a reasonable
fact finder to find otherwise.” Chen, 463 F.3d at 1231 (internal quotation marks
omitted).
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 v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning,
[this Court] review[s] the IJ’s decision as well.” Id. Thus, to the extent that the
BIA agreed with the IJ’s reasons for its adverse-credibility determination, we
review both the BIA’s and IJ’s decisions. See id.
An applicant for asylum must meet the INA’s definition of a refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The definition of “refugee” includes:
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any 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). Thus, in order to meet the
definition of a refugee, the applicant must, “with specific and credible evidence,
demonstrate (1) past persecution on account of a statutorily listed factor, or (2) a
well-founded fear that the statutorily listed factor will cause future persecution.”
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (citing 8 C.F.R. §
208.13(a)).
Under the REAL ID Act of 2005, credibility determinations are based upon
the totality of the circumstances, which may include inaccuracies or falsehoods that
do not go to the “heart of the applicant’s claim.” See INA § 208(b)(1)(B)(iii), 8
U.S.C. § 1158(b)(1)(B)(iii). An applicant must establish eligibility for relief from
removal by offering credible, direct, and specific evidence. Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). We have held that the BIA may base
an adverse-credibility determination upon credible-fear interviews. See, e.g.,
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049-52 (11th Cir. 2009) (upholding
BIA’s adverse-credibility finding based upon inconsistencies in applicant’s
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testimony and his credible-fear interviews). We have also held that the resulting
credibility finding must be supported by the record rather than “personal
perceptions” or speculation and conjecture. Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1278 (11th Cir. 2009).
As an initial matter, the BIA declined to address any of Maison’s arguments
relating to the merits of his persecution claims in light of its credibility
determination. (“Counsel has not established that the credibility finding contains
clear error . . . . Consequently, the respondent is not eligible for asylum or
withholding of removal.”). Accordingly, his arguments on appeal as to whether he
demonstrated past or a well-founded fear of future persecution, are outside the
scope of our review and will not be addressed. See Chen, 463 F.3d at 1231 n.4
(refusing to address the merits of a persecution claim because the IJ’s decision was
based on an adverse-credibility determination).
In this case, substantial evidence supports the BIA’s adverse-credibility
determination. Specifically, the BIA found no clear error in the adverse-credibility
determination based on the following findings by the IJ: (1) a discrepancy between
Maison’s testimony and his father’s declaration regarding who was present during
the July 1999 attack, (2) a discrepancy between Maison’s statement in the
credible-fear interview that he had a brother and his testimony before the IJ that he
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had a sister and not a brother, and (3) the implausibility that his father did not write
a newspaper article, when he was a reporter, about the July 1999 attack.
As to Maison’s claim regarding his father’s declaration, the record supports
the inconsistency because both parties agreed that the declaration stated that
Maison’s father was present when Maison was attacked, whereas Maison testified
that he was alone. The record also supports the BIA’s finding that there was a
discrepancy between Maison’s statement in the credible-fear interview that he had a
brother who left Guyana in fear and fled to Trinidad, and his testimony before the IJ
that he had a sister, still living in Guyana, and not a brother. To the extent that the
BIA’s and IJ’s finding with regard to the newspaper article is speculative, we “must
affirm the BIA’s decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Mehmeti v. U.S. Att’y Gen., 572
F.3d 1196, 1199 (11th Cir. 2009) (internal quotation marks omitted). As a whole,
substantial evidence supports the BIA’s and IJ’s adverse-credibility determination
because the record supports both the discrepancy between Maison’s testimony and
his father’s declaration, and the inconsistency between Maison’s testimony during
his credible-fear interview and his testimony before the IJ. Therefore, Maison did
not meet his burden of showing that the record compels reversal of the adverse-
credibility determination. See Chen, 463 F.3d at 1231.
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After reviewing the entire record, and after consideration of the parties’
appellate briefs, we dismiss in part, and deny in part, the petition for review.
PETITION DISMISSED IN PART, DENIED IN PART.
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