Case: 13-14295   Date Filed: 07/29/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-14295
                         Non-Argument Calendar
                       ________________________

                        Agency No. A097-919-531



JAIRO ENRIQUE HERNANDEZ GOMEZ,
MABEL ALEXANDRA PABON GOMEZ,
ZAIRA CAROLINA PABON GOMEZ,

                                                                      Petitioners,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                              (July 29, 2014)



Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Jairo Hernandez Gomez, on behalf of his wife, Mabel Pabon Gomez, and

their daughter, Zaira Pabon Gomez, all natives and citizens of Colombia, seeks

review of the Board of Immigration Appeals (“BIA”) final order affirming an

Immigration Judge’s (“IJ”) denial of their applications for asylum under

Immigration and Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a);

withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and relief under

the United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). Mabel Pabon

Gomez, on behalf of Zaira Pabon Gomez, filed a separate application for relief

from Hernandez Gomez’s, but relied on the same evidence in support.

      Hernandez Gomez and his family arrived in the United States in 2000 but

did not apply for asylum until 2003. In support of their applications, Hernandez

Gomez, who was a doctor in Colombia, asserted that on three occasions in 1997,

guerillas of the Revolutionary Armed Forces of Colombia (“FARC”) or

paramilitaries of the United Self-Defense Forces of Colombia (“AUC”), detained

him and forced him to provide medical care to their members. Each detention

allegedly occurred while he was participating in a “health brigade,” a program that

provided medical care to rural communities. He further alleged that once the


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FARC learned of his assistance to the AUC, its members began threatening him

and his family, demanding that he continue to provide medical assistance to them

exclusively. In this respect, he claimed that guerrillas kidnapped a five-year old

girl, believing her to be his daughter, and that guerrillas murdered his brother.

      The BIA denied the asylum applications as time-barred and declined to

review the CAT claims as unchallenged. Moreover, the BIA denied Hernandez

Gomez’s and Pabon Gomez’s requests for withholding of removal on the grounds

that Hernandez Gomez (i) was not credible and (ii) failed to provide sufficient

corroborative evidence to support his allegations of persecution.

      Hernandez Gomez challenges the denial in two respects. First, he contends

that the IJ and BIA erred in determining that he was not credible and failed to

present sufficient corroborative evidence. Second, he asserts, for the first time in

the present petition for review, that the IJ and BIA deprived him of a full and fair

hearing, in violation of due process, and that his former attorney rendered

ineffective assistance. The government, in turn, argues that we lack jurisdiction to

review claims concerning the asylum applications because they were denied as

time-barred and that we lack jurisdiction to review the CAT claims because they




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are unexhausted.1 For ease of reference, we will address the jurisdictional and

substantive points in turn.



                                              I.



       We review our subject-matter jurisdiction de novo. Sanchez Jiminez v. U.S.

Att’y Gen., 

, 1231 (11th Cir. 2007). Issues not briefed on appeal are

deemed abandoned, and we will not review them. Timson v. Sampson, 

, 874 (11th Cir. 2008).

       Where an alien initially applied for asylum or withholding of removal before

11 May 2005, the REAL ID Act of 2005 (which amended the INA regarding

applications for asylum and withholding of removal) does not apply. INA

§§ 208(b)(1)(B)(iii), 240(c)(4)(C); 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C);

Shkambi v. U.S. Att’y Gen., 

, 1049 n.7 (11th Cir. 2009).

       An alien seeking asylum must file his application within one year of his

arrival in the United States or show that changed circumstances warrant

consideration of an untimely application. INA § 208(a)(1)(B), (a)(2)(D), 8 U.S.C.

§ 1158(a)(1)(B), (a)(2)(D). Moreover, the INA precludes judicial review of an


       1
         As noted more fully later, we have also considered, but reject, the government’s
additional contention that we lack jurisdiction to review Hernandez Gomez’s withholding-of-
removal claim due to lack of exhaustion.
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agency determination regarding the timeliness of an asylum application, including

a determination that an application failed to show changed or extraordinary

circumstances. INA § 208(a)(3), 8 U.S.C. § 1158(a)(3); see, e.g., Sanchez 

(discussing jurisdiction-stripping provision in pre-REAL ID Act).

      Exhaustion of administrative remedies prior to judicial review is a

jurisdictional requirement under the INA. INA § 282(d)(1); 8 U.S.C. § 1252(d)(1);

Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1250 (11th Cir. 2006).

Thus, we may not consider a petitioner’s claim that was not presented to the BIA.

.

      The exhaustion requirement applies to due process claims. See Sundar v.

INS, 

, 1325-26 (11th Cir. 2003) (“A petitioner cannot obtain review

of procedural errors in the administrative process that were not raised before the

[BIA] merely by alleging that every such error violates due process.”). We have

also indicated that exhaustion applies to ineffective-assistance-of-counsel claims.

Cf. Montano Cisneros v. U.S. Att’y Gen., 

, 1229 n.3 (11th Cir. 2008)

(rejecting, in the context of a motion to reopen, the government’s assertion that

petitioner’s ineffective-assistance-of-counsel claim was unexhausted, explaining

that the petitioners had “always argued” the core issue of ineffective assistance of

counsel and, thus, were not raising it for the first time on appeal). Upon review of




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the record and consideration of the parties’ briefs, we dismiss the petition in part

and deny the petition in part.

       We lack jurisdiction to review Hernandez Gomez’s claims on the denial of

asylum and CAT relief, as well as his claim asserting a due process violation and

ineffective assistance of counsel. First, we lack jurisdiction to review the BIA’s

time-bar denial of Hernandez Gomez’s and Pabon Gomez’s asylum applications

because the INA precludes judicial review of such timeliness determinations. See

INA § 208(a)(3), 8 U.S.C. § 1158(a)(3); Sanchez 

. As a

result, Hernandez Gomez’s claims on the merits of the asylum denials are moot.

Next, we lack jurisdiction to review Hernandez Gomez’s challenge to the denial of

CAT relief because he failed to raise the claim before the BIA. See Amaya-

. We also lack jurisdiction to review Hernandez

Gomez’s final claim, whether interpreted as a due process claim or an ineffective-

assistance-of-counsel claim, because he raises it for the first time in the present

petition for review; thus, it is unexhausted. See 

; cf.

Montano 

n.3.

       We may however, review the sole remaining claim: the review of

withholding of removal; Hernandez Gomez adequately raised the claim before the

BIA.




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                                         II.



      We review the decision of both the BIA and IJ to the extent that the BIA

expressly adopted an IJ’s decision. Ayala v. U.S. Att’y Gen., 

, 947-48

(11th Cir. 2010). Because here the BIA explicitly agreed with several findings of

the IJ, we review both decisions for those issues. See 

factual

determinations, which include credibility determinations, under the substantial-

evidence test. Ruiz v. U.S. Att’y Gen., 

, 1254–55 (11th Cir. 2006).

      “[U]nder the substantial-evidence test, we view the record evidence in the

light most favorable to the agency’s decision and draw all reasonable inferences in

favor of that decision.” 

We must affirm the decision “if it is supported

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

whole.” 

“[T]hat the record may support a contrary conclusion is

not enough to justify a reversal of the [agency’s] findings.” 

We must

affirm the agency’s decision, unless no reasonable basis supports its decision. 

must offer specific, cogent reasons for an adverse credibility

finding.” 

an IJ makes an adverse-credibility finding, the applicant -- to

obtain reversal of the finding -- must show that the finding “was not supported by

‘specific’ cogent reasons, or was not based on substantial evidence.” Forgue v.

U.S. Att’y Gen., 

, 1287 (11th Cir. 2005). We have previously


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affirmed a pre-REAL ID Act adverse credibility determination that was based on

the agency’s finding that the alien’s testimony conflicted with prior answers given

in an affidavit, interrogatories, and other evidence. See Dailide v. U.S. Att’y Gen.,

, 1343 (11th Cir. 2004).

      For withholding of removal, an alien’s testimony, if credible, may be

sufficient to sustain his burden of proof, without corroborating evidence. 

. “The weaker an applicant’s testimony, however, the greater the

need for corroborative evidence.” Yang v. U.S. At’ty Gen., 

, 1201

(11th Cir. 2005). Even if an IJ finds an alien to be not credible, the IJ must still

consider other evidence produced by the applicant in support of his claim. 

. Nevertheless, an IJ is not required to address specifically every

piece of evidence as long as the IJ gave “reasoned consideration” to the claims and

made adequate findings. Tan v. U.S. Att’y Gen., 

, 1374 (11th Cir.

2006).

      Here, substantial evidence supports the BIA’s denial of withholding of

removal based on the findings that Hernandez Gomez (i) was not credible and (ii)

failed to support otherwise his allegations of mistreatment and threats with

sufficient corroborative evidence.

      First, substantial evidence supports the agency’s adverse credibility

determination; and Hernandez Gomez cannot show that the record compels a


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contrary conclusion. The IJ presented specific, cogent reasons for the credibility

determination -- namely, the internal inconsistencies in Hernandez Gomez’s

account of his interaction with the groups in Colombia. The IJ and BIA noted

discrepancies in his account about (i) whether he was kidnapped alone or with

others, (ii) the length of his various detentions, (iii) whether he reported the

detentions to the police, and (iv) whether he communicated over the phone or in

person with the guerrilla who threatened to kidnap his daughter. The record

confirms these discrepancies and contains no other evidence explaining or refuting

them. This basis is sufficient under the substantial-evidence standard. See 

. Because the noted inconsistencies relate directly to the bases of

Hernandez Gomez’s withholding of removal claim -- the 1997 detentions and the

threats against his family -- they support an adverse-credibility finding. 2

       Next, the valid adverse-credibility determination required Hernandez Gomez

to support his allegations underlying his withholding-of-removal claim with

additional corroborating evidence. See 

. The BIA

concluded that he failed to do so; and substantial evidence supports that

conclusion.



       2
          Although we have not addressed in a published opinion whether adverse credibility
determinations in pre-REAL ID Act cases must be based on inconsistencies that go to the heart
of the claim, 

n.7, we need not do so presently given that the noted
inconsistencies satisfy this standard.

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      Here, the IJ and BIA reviewed the evidence in the record, including a

statement from Hernandez Gomez’s father, a letter from a district attorney in

Colombia confirming the death of Hernandez Gomez’s brother, and Pabon

Gomez’s testimony. The BIA correctly rejected the statement from Hernandez

Gomez’s father because it was not based on a first-hand account, but rather,

stemmed from Hernandez Gomez’s own, discredited assertions. Considering the

district attorney’s letter was silent on the identity of any suspects in the death of

Hernandez Gomez’s brother, it provided no support for the assertion that the

FARC killed the brother in retaliation against Hernandez Gomez. Moreover, the

record contains no evidence connecting the kidnapping of the 5-year old girl by the

FARC to Hernandez Gomez or to his daughter in any way: the kidnapping was one

of his chief allegations in support of his withholding of removal claim. In addition,

because Pabon Gomez’s testimony just described vague threats in two undated

calls from an unidentified caller, it similarly failed to corroborate Hernandez

Gomez’s material claims. The record omissions noted by the BIA were

significant. For example, the record is devoid of evidence that showed Hernandez

Gomez, in fact, participated in the health brigades: the alleged triggering cause of

the detentions and threats. Without evidence that he actually participated in the

health brigades, the background materials he submitted on kidnappings of health

brigade personnel, or various killings by guerrillas, are of little value.


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       Although the BIA did not expressly reference each item of evidence, any

omission in this respect was harmless because the BIA’s assessment reflects a

reasoned consideration of the record; and nothing in the record compels the

reversal of its conclusions. In the light of the lack of first-hand-knowledge

evidence and the marginal relevance of the evidence in the record, and the

significant record omissions, substantial evidence supports the BIA’s decision that

Hernandez Gomez failed to provide adequate corroborating evidence to support his

claim for withholding of removal.3

       PETITION DISMISSED IN PART, DENIED IN PART.




       3
         Although Hernandez Gomez also challenges an alternative merits findings by the IJ
concerning past persecution, we need not address the challenge because substantial evidence
supports the fundamental grounds for the denial, the adverse-credibility and lack-of
corroborative-evidence findings about the operative facts.

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