[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 17, 2006
                                No. 06-11283                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                              BIA No. A79-470-771

ALAND GILBERTO PORTILLO-SIERRA,
MARIA JOSEFINA SUAREZ-PAREDES,

                                                                       Petitioners,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

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

                               (October 17, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

      Petitioners Aland Gilberto Portillo-Sierra and Maria Josefina Suarez-Paredes

are citizens of Colombia, S.A. They arrived in the United States on February 1,
2001 on a visitors’ visa for pleasure, with authorization to remain in the United

States for a period not to exceed August 4, 2001. On May 2, 2001, Petitioner

Portillo-Sierra filed an application for asylum, withholding of removal, and

protection under the U.N. Convention Against Torture (“CAT”), alleging

persecution on account of political opinion.1

       A removal hearing was held on March 17, 2005. Petitioner submitted his

asylum application and documentary materials into evidence. The Government

introduced the State Department’s 2003 Country Report for Colombia. The

Immigration Judge (“IJ”) found Petitioner’s testimony not credible because his

testimony contradicted other evidence in the record, specifically key details of

Petitioner’s sworn asylum application. The IJ also found that even if credible,

Petitioner failed to establish that he was harmed on account of his political opinion.

Due to this internally inconsistent and insufficient evidence, the IJ denied

Petitioners asylum, withholding of relief and CAT protection and ordered their

removal.

       Petitioners appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”), which affirmed on January 27, 2006. Petitioners now petition this court



       1
          Petitioners are husband and wife. As noted above, the husband filed the asylum
application; the wife’s application is derivative. For convenience, we address the merits of the
husband’s claim, referring to the husband as Petitioner. We refer to the wife only where
necessary.
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for review.

       Petitioners contend that the BIA erred by affirming the IJ’s adverse

credibility finding because the inconsistencies the IJ found were actually omissions

from the asylum application and were not material to their claim. Petitioners also

argue their due process rights were violated (1) when the IJ requested Petitioner to

enter into a stipulation to bypass direct testimony, thereby “trapping” him into an

adverse credibility finding, and (2) by ineffective assistance of counsel at the

asylum hearing.

       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, 

, 1284 (11th Cir. 2001). To the extent the BIA adopts the IJ’s reasoning,

we review the IJ’s decision as well. 

the BIA issued its own

decision, we only review only that decision.

       “The BIA’s factual determinations are reviewed under the substantial

evidence test, and [we] must affirm the BIA’s decision if it is supported by

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

whole.” D-Muhumed v. U.S. Attorney Gen., 

, 817-18 (11th Cir.

2004). Credibility determinations are also reviewed under this substantial evidence

test. 

       The IJ or BIA must make “clear determinations of credibility.” See Yang v.
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U.S. Attorney Gen., 

, 1201 (11th Cir. 2005). “[A]n adverse

credibility determination alone may be sufficient to support the denial of an asylum

application” when there is no other evidence of persecution. Forgue v. U.S.

Attorney Gen., 

, 1287 (11th Cir. 2005). However, the IJ or BIA is

not relieved of the duty to consider other evidence produced by the asylum

applicant upon making an adverse credibility determination; the IJ or BIA must

consider all the evidence the applicant introduces. 

adverse

credibility finding is made, the burden is on the asylum applicant to show that the

IJ’s credibility decision was not supported by ‘specific, cogent reasons’ or was not

based on substantial evidence.” 

      The BIA’s specific, cogent reasons for the adverse credibility determination

were based on omissions in Petitioner’s asylum application that were revealed

during Petitioner’s testimony at the asylum hearing, namely that: (1) the National

Liberation Army (“ELN”) kidnapped Petitioner; (2) the kidnappers stole his truck;

and (3) the kidnappers asked for his political support. These omissions were

material to Petitioner’s application. The BIA’s adverse credibility finding was

based on substantial evidence; thus, we are not compelled to overturn it.

      However, because a denial of asylum and withholding of removal cannot be

based solely on an adverse credibility claim when the applicant offered other

evidence of persecution, we must examine whether the BIA properly considered all
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record evidence in denying the instant application. Petitioners’ other relevant

evidence included complaints to the police about the murder of Petitioner Suarez-

Paredes’s uncle, allegedly committed by the ELN. There is nothing in the BIA’s

decision that indicates that it considered this additional evidence. The BIA only

discussed the inconsistencies the IJ found between Petitioner’s asylum application

and his testimony. Therefore, although we affirm the BIA’s adverse credibility

finding, we must remand the case to the BIA for consideration of the evidence of

the uncle’s murder. Before remanding the case, however, we consider Petitioners’

due process claims.

      “[T]he Fifth Amendment entitles aliens to due process of law in deportation

proceedings.” Reno v. Flores, 

, 306, 

, 1449, 

(1993). Due process requires that all aliens be given notice and an

opportunity to be heard in their removal proceedings. Fernandez-Bernal v.

Attorney Gen. of U.S., 

, 1310 n.8 (11th Cir. 2001). “To establish a

due process violation, an alien must show that he or she was deprived of liberty

without due process of law, and that the asserted error caused him substantial

prejudice.” Garcia v. Attorney Gen. of U.S., 

, 1222 (11th Cir. 2003)

(citations omitted). To establish substantial prejudice, the alien is required to show

that the outcome of the proceedings would have been different. See Dakane v.

U.S. Attorney Gen., 

, 1274 (11th Cir. 2005).
                                           5
      Petitioner suffered no deprivation of his due process rights through the

execution of the stipulation to bypass direct testimony because he was given the

opportunity to be heard at the asylum hearing. In addition, he was represented by

counsel to ensure that his rights were protected. Furthermore, he failed to show

prejudice. Therefore, we deny the petition for review as to this issue, and take up

the ineffective assistance of counsel matter.

      “A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” INA §

242(d)(1), 8 U.S.C. § 1252(d)(1). The requirement is jurisdictional; hence, we lack

jurisdiction to review a claim not presented to the BIA. Alim v. Gonzales, 

, 1253 (11th Cir. 2006).

      In this case, Petitioner did file a motion to reopen the removal proceeding on

the ground that counsel rendered ineffective assistance in that proceeding; rather,

his ineffective assistance claim is based on his former attorney’s failure to file the

notice of appeal to the BIA in a timely manner. Petitioner did not argue before the

BIA, as he does here, that he received ineffective assistance of counsel during the

removal hearing. In short, the BIA did not address whether Petitioner was denied

the effective assistance of counsel at that hearing. We accordingly dismiss the

instant petition as to this claim because Petitioner failed to exhaust his


                                           6
administrative remedies.

      In conclusion, we affirm the petition as to the adverse credibility finding,

remand the case to the BIA for consideration of the evidence of the uncle’s murder,

deny the petition as to the due process claim, and dismiss the petition as to the

ineffective assistance of counsel/due process claim.

      AFFIRMED, in part; DISMISSED, in part; DENIED, in part; and

REMANDED, in part.




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