Case: 17-11530   Date Filed: 02/14/2018   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11530
                        Non-Argument Calendar
                      ________________________

                        Agency No. A206-701-676



KENIA FABIOLA NUNEZ-ROMERO,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (February 14, 2018)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 17-11530       Date Filed: 02/14/2018   Page: 2 of 6


      Petitioner Kenia Nunez-Romero, a native and citizen of Honduras, petitions

for review of the Board of Immigration Appeals’s (“BIA”) order affirming the

Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). Because

neither of the arguments Petitioner raises in her petition for review were exhausted

to the BIA, we lack jurisdiction to review these arguments. Accordingly, we

dismiss the petition for review.

I.    BACKGROUND

      In July 2014, the Department of Homeland Security served Petitioner with a

Notice to Appear, charging her with inadmissibility under 8 U.S.C.

§ 1182(a)(6)(A)(i), for being an alien present in the United States without being

admitted or paroled. In March 2015, Petitioner filed an application for withholding

of removal and CAT relief based on her membership in a particular social group.

Specifically, she asserted that she feared returning to Honduras because her son’s

father had physically abused her and threatened to kill her.

      At a subsequent hearing before the IJ, Petitioner admitted the allegations in

the Notice to Appear and indicated that she was seeking asylum, in addition to

withholding of removal and CAT relief. At the merits hearing, Petitioner testified

that she had failed to file her asylum application within one year of her arrival in

February 2013 because she was busy trying to find a way to bring her son to the


                                           2
              Case: 17-11530     Date Filed: 02/14/2018   Page: 3 of 6


United States. Petitioner explained that she was kidnapped by her son’s father in

2002, when she was 14 years old. She said he took her to the mountains and raped

her repeatedly for several months. She became pregnant during this time. She also

recounted a separate occasion where she was raped by her son’s father’s cousins.

      On cross-examination, Petitioner changed her account, testifying that she

became pregnant with her son in 2005 and gave birth to him in 2006. Government

counsel asked Petitioner to explain why she testified on direct examination that she

became pregnant in 2002 while she was in the mountains, but just moments later

had said she became pregnant with this son in 2005. Petitioner clarified that she

had been pregnant twice; she had gotten pregnant for the first time when she was in

the mountains but lost that baby due to her son’s father’s abuse. On redirect

examination, Petitioner, switched gears again, admitting that she had only been

pregnant once and had lied about having a miscarriage.

      Following the hearing, the IJ denied Petitioner’s applications for relief. The

IJ noted that Petitioner’s inadmissibility pursuant to § 1182(a)(6)(A)(i) had been

established by clear and convincing evidence. The IJ further concluded that

Petitioner was statutorily ineligible for asylum because her application was filed

more than one year after her arrival in the United States and she had failed to

establish changed or extraordinary circumstances that would excuse the untimely

filing. As to her applications for withholding of removal and CAT relief, the IJ


                                          3
              Case: 17-11530     Date Filed: 02/14/2018    Page: 4 of 6


found Petitioner incredible based on the repeated false testimony she provided

during her testimony. After concluding that Petitioner had not presented sufficient

corroborative evidence to rehabilitate her claims, the IJ denied her applications and

ordered her removed to Honduras.

      Petitioner appealed to the BIA, challenging only the IJ’s adverse credibility

determination. The BIA affirmed the IJ’s decision and dismissed the appeal. First,

the BIA noted that Petitioner had failed to challenge the IJ’s determination that she

was not statutorily eligible for asylum, and thus she had waived that issue. As to

the only challenge Petitioner made on appeal, the BIA determined that the IJ’s

adverse credibility determination was not clearly erroneous, and that the IJ acted

well within her authority to find Petitioner not credible, based on her false

testimony. Accordingly, the BIA affirmed the IJ’s denial of Petitioner’s

applications for withholding of removal and CAT relief.

II.   DISCUSSION

      In her petition for review before us, Petitioner argues that her case should be

remanded because she never conceded the charge of inadmissibility. Petitioner

also asserts that the IJ erred by concluding that she did not have authority to grant

humanitarian asylum. She does not raise the one challenge that she litigated before

the BIA: the IJ’s finding that she was not credible.




                                          4
              Case: 17-11530     Date Filed: 02/14/2018    Page: 5 of 6


      We review our subject matter jurisdiction de novo. Alvarado v. U.S. Att’y

Gen., 

, 1314 (11th Cir. 2010). We may review a final order of

removal only if the petitioner has exhausted her administrative remedies. 8 U.S.C.

§ 1252(d)(1). Exhaustion is a jurisdictional requirement and prevents our Court

from reviewing a claim not presented to the BIA, even if the BIA addressed the

claim sua sponte. Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1250

(11th Cir. 2006).

      Here, we lack jurisdiction to review the arguments Petitioner raises in her

petition for review because Petitioner never raised them with the BIA, meaning she

has failed to exhaust her administrative remedies. In her brief to the BIA,

Petitioner never questioned the IJ’s decision regarding her inadmissibility nor even

argued that the IJ should have granted her humanitarian asylum. She challenged

only the IJ’s adverse credibility determination. It is true that some constitutional

challenges and due process claims do not require exhaustion if the BIA does not

have authority to adjudicate those claims. Sundar v. I.N.S., 

, 1325

(11th Cir. 2003) (noting that where a claim is “within the purview of the BIA

which can provide a remedy, the exhaustion requirement applies with full force”).

But here, Petitioner raises no constitutional or due process claims in her petition

for review, and the BIA could have adjudicated the two claims she now makes.

Thus, because the arguments Petitioner raises in this petition for review were not


                                          5
                Case: 17-11530   Date Filed: 02/14/2018   Page: 6 of 6


presented to the BIA, they are not exhausted and we lack jurisdiction to consider

them. See 

the denial of Petitioner’s applications for asylum, withholding of

removal, and CAT relief, she has abandoned any arguments she may have had

pertaining to these claims by not raising them in her appellate brief. See Sepulveda

v. U.S. Att’y Gen., 

, 1228 n.2 (11th Cir. 2005) (stating that issues not

raised on appeal are deemed abandoned). Indeed, as noted, Petitioner does not

challenge the BIA’s determination as to the only argument she did exhaust—that

is, the BIA’s conclusion that the IJ’s adverse credibility determination was not

clearly erroneous.

      PETITION DISMISSED.




                                          6