Case: 16-11816    Date Filed: 04/05/2017   Page: 1 of 4


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-11816
                            Non-Argument Calendar
                          ________________________

                           Agency No. A205-697-375



MARCO GRIMALDO-RUBIANO,
RALIA MIGLEYDIS PERAZA-CAMPOS,
ANDRES ALEJANDRO GRIMALDO-PERAZA,
                                                                        Petitioners,


                                      versus

U.S. ATTORNEY GENERAL,
                                                                        Respondent.

                          ________________________

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

                                 (April 5, 2017)

Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Marco Grimaldo-Rubiano, and his wife and son as derivative beneficiaries,

petition for review of an order affirming the denial of Grimaldo-Rubiano’s
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applications for asylum and withholding of removal under the Immigration and

Nationality Act and the United Nations Convention Against Torture and Other

Cruel, Inhuman and Degrading Treatment or Punishment. 8 U.S.C. §§ 1158(b)(1),

1231(b)(3)(A). The Board of Immigration Appeals affirmed the finding of the

immigration judge that Grimaldo-Rubiano was ineligible for relief under the Act

based on his alleged persecution in Venezuela, where he was a naturalized citizen,

because he could return to his native county of Colombia. Alternatively, the Board

agreed with the finding that Grimaldo-Rubiano failed to prove he suffered past

persecution or had a well-founded fear of future persecution in Venezuela. We

deny in part and dismiss in part Grimaldo-Rubiano’s petition.

      Grimaldo-Rubiano challenges the denial of his application based on the

finding that he has an alternative country of nationality, but substantial evidence

supports the finding that he is a Colombian citizen. An exhibit submitted by the

Department of Homeland Security provided that Colombian “citizenship is based

upon the Constitution of Colombia, dated July 1991” and quotes the Constitution

as stating that “[n]o Colombian by birth may be stripped of his[] nationality . . .

[nor] can[] [it] be lost by virtue of acquiring another nationality.” Grimaldo-

Rubiano stated that he was born on September 29, 1975, to Colombian nationals in

Cali, Colombia, and received a Colombian birth certificate; that he used a

Colombian passport to enter Venezuela, where he became a naturalized citizen


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when he was 16 years old; and that he never renounced his Colombian citizenship.

That evidence, as the Board ruled, established that Grimaldo-Rubiano “became a

naturalized Venezuelan citizen sometime after July 1991, and . . . maintains his

citizenship in Colombia.”

      Grimaldo-Rubiano’s Colombian citizenship makes him ineligible for relief

under the Act. Grimaldo-Rubiano argues about being denied asylum on the basis

he could be removed to a “safe third country,” see 8 U.S.C. § 1158(a)(2), but

Grimaldo-Rubiano was denied asylum because he failed to prove that he was a

refugee, 

To qualify as a refugee, a person must be “unable or

unwilling to return to, and . . . unable or unwilling to avail himself . . . of the

protection of . . . any country of [his] nationality.” 

Grimaldo-

Rubiano presented no evidence that he had a well-founded fear of future

persecution in Colombia or that the country would be unwilling to offer him

protection. See Matter of B-R-, 26 I. & N. Dec. 119, 122 (B.I.A. 2013). Grimaldo-

Rubiano does not qualify as a “refugee,” under section 1101(a)(42)(A), which

makes him ineligible for asylum in the United States. Grimaldo-Rubiano also

necessarily fails to qualify under the more stringent standards for obtaining

withholding of removal and relief under the Convention. See Zheng v. U.S. Att’y

Gen., 

, 1292 (11th Cir. 2006).

      Grimaldo-Rubiano challenges the denial of asylum on three grounds, all of


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which fail for lack of exhaustion. First, Grimaldo-Rubiano argues that the

Department violated regulations in determining his removability, see 8 C.F.R.

§ 1240.10(c), (d), but Grimaldo-Rubiano failed to raise this issue earlier and

conceded his removability. Second, Grimaldo-Rubiano argues that the exhibit the

Department submitted is “non-authoritative,” but he did not object to the exhibit

during his removal hearing or question its validity in his appeal to the Board.

Third, Grimaldo-Rubiano argues that the immigration judge erred in failing to

require the Department to submit “additional arguments and supporting evidence”

regarding his Colombian citizenship, but Grimaldo-Rubiano did not present that

issue to the Board. “[A]bsent a cognizable excuse or exception,” we “lack

jurisdiction to consider a claim raised in a petition for review unless the petitioner

has exhausted his administrative remedies.” Amaya–Artunduaga v. U.S. Att’y Gen.,

, 1250 (11th Cir. 2006). We dismiss this part of Grimaldo-Rubiano’s

petition.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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