Case: 12-16347   Date Filed: 03/20/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16347
                        Non-Argument Calendar
                      ________________________

                       Agency No. A098-772-417


MIRI VUKAJ,

                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (March 20, 2014)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Miri Vukaj seeks review of the Board of Immigration Appeals’s (“BIA”)

final order affirming the Immigration Judge’s (“IJ”) denial of his application for

asylum because it was untimely. Vukaj filed his asylum application, which alleged

that he had a well-founded fear of future persecution based on his sexual

orientation, outside of the one-year filing period, but had argued that exceptional

circumstances, namely his inability to acknowledge his sexual orientation earlier,

excused the late filing. On appeal, Vukaj argues that, pursuant to 8 U.S.C. §

1252(a)(2)(D), we have jurisdiction to review his petition because he is raising

constitutional claims related to the denial of his asylum application as untimely.

After careful review, we dismiss the petition in part, and deny it in part.

      Aliens seeking asylum are required to file an application within one year of

entering the United States. 8 U.S.C. § 1158(a)(2)(B). However, the untimeliness

of an asylum application may be excused if it was caused by changed or

extraordinary circumstances.      8 U.S.C. § 1158(a)(2)(D).          Nonetheless, the

Immigration and Nationality Act (“INA”) provides that courts lack jurisdiction to

review any determination of the Attorney General regarding the timeliness of an

application or existence of extraordinary circumstances. 8 U.S.C. § 1158(a)(3).

Therefore, we lack jurisdiction to review the BIA’s decisions as to whether an

alien complied with the one-year time limit for filing an asylum application or

whether extraordinary circumstances justified an untimely filing.             Ruiz v.

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Gonzales, 

, 765 (11th Cir. 2007). Additionally, we may not review a

final order of removal unless “the alien has exhausted all administrative remedies

available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner has failed

to exhaust his administrative remedies as to a claim raised in a petition for review,

we lack jurisdiction to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen.,

, 1251 (11th Cir. 2006). On the other hand, federal courts retain

jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. §

1252(a)(2)(D).

      We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,

, 1341 (11th Cir. 2003). To establish due process violations in

removal proceedings, an alien must show that he was deprived of liberty without

due process of law, and that the asserted errors caused him substantial prejudice.

The BIA (or the IJ, if applicable) must consider the issues that a

petitioner raises and announce its decision in terms that enable us to review its

decision. Ayala v. U.S. Att’y Gen., 

, 948 (11th Cir. 2010). The BIA

need not, however, specifically address each claim or each piece of evidence that a

petitioner presents. 

and BIA need only “consider the issues raised and

announce their decision in terms sufficient to enable a reviewing court to perceive

that they have heard and thought and not merely reacted.” 

quotation omitted). Because the BIA affirmed for the reasons stated in the IJ’s

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decision, we review both decisions. See Al Najjar v. Ashcroft, 

,

1284 (11th Cir. 2001).

      Here, the IJ found that Vukaj’s asylum application was untimely and that he

failed to demonstrate extraordinary circumstances that excused his failure to timely

apply for asylum. We generally lack jurisdiction to review the IJ’s untimeliness

determination. See 

; 8 U.S.C. § 1158(a)(3). But Vukaj raises

two due process claims related to the IJ’s denial of his asylum application, and we

retain jurisdiction to consider constitutional claims. 8 U.S.C. § 1252(a)(2)(D). As

for Vukaj’s due process argument that the IJ impermissibly relied on stereotypes

and inappropriate assumptions, however, he failed to present this claim in his

appeal to the BIA.       Thus, we lack jurisdiction to consider this unexhausted

argument, see 8 U.S.C. § 1252(d)(1); 

, and

Vukaj’s petition is dismissed in part.

      As for Vukaj’s due process argument that the IJ failed to provide a reasoned

explanation for the denial of Vukaj’s asylum application as untimely, we find it to

be without merit. It is clear from the IJ’s decision that he denied Vukaj’s asylum

application because Vukaj’s circumstances -- specifically, the difficult process of

coming to terms with his sexual orientation -- did not constitute exceptional

circumstances that excused Vukaj’s failure to bring the asylum claim within one

year of his 2004 arrival. As the record shows, the IJ explicitly acknowledged that

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Vukaj was arguing that extraordinary circumstances excused his failure to file for

asylum within one year of his last arrival to the United States. The IJ cited to and

summarized the documentary and testimonial evidence that Vukaj submitted in

support of his argument that extraordinary circumstances excused his untimely

asylum application. The IJ also noted that Vukaj had arrived in the United States

in 2004, but did not submit his asylum application based on his sexual orientation

until June 2008 and that Vukaj had thoughts about homosexuality prior to leaving

Albania. The IJ indicated that he understood why Vukaj did not timely submit his

asylum application, but concluded that these circumstances did not meet Vukaj’s

burden of proving that an exception to the one-year time bar applied in his case.

Thus, the IJ considered Vukaj’s arguments and evidence and announced a decision

sufficient to show that he had “heard and thought and not merely reacted.” 

. Accordingly, we deny Vukaj’s petition as to this due process

claim. 1

       PETITION DISMISSED IN PART, DENIED IN PART.




1
       Furthermore, the respondent’s motion to dismiss for lack of jurisdiction is DENIED.
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