                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________          FILED
                                              U.S. COURT OF APPEALS
                           No. 11-13715         ELEVENTH CIRCUIT
                       Non-Argument Calendar        APRIL 5, 2012
                     ________________________        JOHN LEY
                                                      CLERK
                       Agency No. A200-634-256

MAX DANIEL LANGE WULFF,
MARIA EUGENIA LIMA DONIZ,



                                                              Petitioners,

versus

U.S. ATTORNEY GENERAL,

                                                              Respondent.

                     ________________________

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

                             (April 5, 2012)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
        Max Daniel Lange Wulff and Maria Eugenia Lima Doniz (collectively, “the

petitioners”), natives and citizens of Venezuela, seek review of the Board of

Immigration Appeal’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”)

denial of their application for asylum, withholding of removal under the Immigration

and Nationality Act (“INA”), and withholding of removal under the United Nations

Convention Against Torture (“CAT”). On appeal, the petitioners argue that: (1)

substantial evidence does not support the BIA’s finding that Wulff did not testify

credibly, which was based upon inconsistencies between the administrative record

and Wulff’s testimony regarding four encounters with Venezuelan officials or

government sympathizers, and that their evidence sufficiently corroborated Wulff’s

testimony; and (2) the BIA and IJ violated their substantive and procedural due

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

part.

        Where the BIA issues its own opinion, we review only the BIA’s decision,

except to the extent that it expressly adopts the IJ’s decision. Kueviakoe v. U.S. Att’y

Gen., 567 F.3d 1301, 1304 (11th Cir. 2009).

        We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to review the

BIA’s determination that an applicant is ineligible for asylum because he did not file

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a timely asylum application and that changed or extraordinary circumstances did not

excuse the untimely filing. 8 U.S.C. § 1158(a)(3); Chacon-Botero v. U.S. Att’y Gen.,

427 F.3d 954, 956-57 (11th Cir. 2005). We also lack jurisdiction to consider a claim

raised in a petition for review unless the petitioner exhausted his administrative

remedies with respect to that issue. 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463

F.3d at 1250.

      We review the BIA’s factual findings, including credibility determinations,

under the substantial evidence standard. Kueviakoe, 567 F.3d at 1304. We must

affirm the BIA’s decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole. Delgado v. U.S. Att’y Gen., 487 F.3d

855, 860 (11th Cir. 2007). Evidence must be viewed in the light most favorable to

the BIA’s decision, and we draw all inferences in favor of that decision. Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Only if the record compels

it may we reverse the BIA’s factual findings. Id.

      An applicant must establish eligibility for relief from removal by offering

credible, direct, and specific evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282,

1287 (11th Cir. 2005). Indications of reliable testimony include consistency on direct

examination, consistency with the written application, and the absence of

embellishment. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).

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While the applicant’s credible testimony, alone, may be sufficient to establish

eligibility for relief from removal, an adverse-credibility determination may be

sufficient to deny relief where there is no other evidence of persecution. Forgue, 401

F.3d at 1287. Moreover, as the applicant’s testimony becomes weaker, the greater the

need for corroborative evidence becomes. See Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005). The BIA must make a clean determination of

credibility, which requires it to expressly state its credibility finding. See id. It must

offer specific, cogent reasons for an adverse-credibility finding, and, upon such a

finding, the applicant bears the burden of showing that it was not supported by

specific, cogent reasons, or that it was not based upon substantial evidence. Forgue,

401 F.3d at 1287.

      The REAL ID Act of 2005 governs credibility determinations regarding

applications for asylum and withholding of removal filed after May 11, 2005.

Kueviakoe, 567 F.3d at 1305. That statute reads:

      Considering the totality of the circumstances, and all relevant factors, a
      trier of fact may base a credibility determination on the demeanor,
      candor, or responsiveness of the applicant or witness, the inherent
      plausibility of the applicant’s or witness’s account, the consistency
      between the applicant’s or witness’s written or oral statements
      (whenever made and whether or not under oath, and considering the
      circumstances under which the statements were made), the internal
      consistency of each such statement, the consistency of such statements
      with other evidence of record (including the reports of the Department

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      of State on country conditions), and any inaccuracies or falsehoods in
      such statements, without regard to whether an inconsistency, inaccuracy,
      or falsehood goes to the heart of the applicant’s claim, or any other
      relevant factor. There is no presumption of credibility, however, if no
      adverse-credibility determination is explicitly made, the applicant or
      witness shall have a rebuttable presumption of credibility on appeal.

8 U.S.C. § 1158(b)(1)(B)(iii).        Because of the petitioner’s burden and the

totality-of-the-circumstances test, tenable explanations for inconsistencies or

implausibilities are not sufficient to reverse a BIA’s adverse-credibility findings if the

explanation would not compel a reasonable factfinder to reverse the finding. See

Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).

      We have permitted the BIA to rely upon omissions and inconsistencies between

an applicant’s testimony and his interviews with asylum officers, especially where the

hearing testimony “actually contradicts” and “cannot be squared with” the interview.

See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049-52 (11th Cir. 2009) (upholding

an adverse-credibility finding based upon omissions in the applicant’s airport and

credible-fear interviews and inconsistencies between those interviews and the

applicant’s testimony). Thus, we have upheld reliance on omissions from, and

inconsistencies in, interviews where they did not merely give a less detailed version

of the facts, but omitted entire incidents and other significant facts, and directly

contradicted subsequent testimony. See id.



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      As an initial matter, there are a number of issues not properly before us. With

respect to the petitioners’ asylum claim, we do not have jurisdiction to review the

BIA’s conclusion that they were ineligible for asylum because they filed an untimely

application that was not excepted by changed or extraordinary circumstances. See

Chacon-Botero, 427 F.3d at 956-57. Further, to the extent the petitioners seek to

argue on appeal that the agency erred by relying on the asylum officer’s notes, as

opposed to the content of the asylum interview itself, they did not raise this argument

before the BIA and we are without jurisdiction to consider it.                     See

Amaya-Artunduaga, 463 F.3d at 1250. Finally, we do not have jurisdiction to

consider the petitioners’ arguments that the agency violated their substantive and

procedural due process rights because they did not raise these claims before the BIA.

See id. In any case, even if the petitioners were not required to exhaust their

substantive due process claim, they have abandoned it on appeal because they only

made a passing mention of the claim and offered no substantive argument. See

Sepulveda, 401 F.3d at 1228 n.2. Accordingly, we dismiss the petition for review to

the extent that the petitioners seek to raise these claims.

      With respect to the petitioners’ claims for withholding of removal and CAT

relief, the record does not compel a finding that Wulff testified credibly when read

in a light most favorably to the BIA’s decision. The BIA relied upon a number of

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inconsistencies in the record in support of its adverse-credibility finding, including

inconsistencies regarding the date on which an individual struck Wulff’s vehicle three

times. Although Wulff testified that this incident occurred on November 16, 2000,

a police report indicated that he informed Venezuelan law enforcement that this

incident took place on September 16, 2000. The BIA recognized that this was a

minor inconsistency, but the record plainly refutes the petitioners’ argument that the

BIA rested the adverse-credibility finding solely upon it.

      Indeed, the BIA also relied upon Wulff’s omission of incidents occurring on

August 15, 2000, and September/November 16, 2000, from his asylum interview.

These were the types of omissions that we have permitted the BIA to rely upon, as

Wulff told the asylum officer that he suffered only one attack or threat and proceeded

to describe the September 14, 2001, incident. He then told the asylum officer that

there were no other incidents. Thus, Wulff’s statements before the asylum officer

foreclosed the possibility that incidents other than the one on September 14, 2001,

occurred.

      Inconsistencies in the record also existed with respect to incidents occurring

on December 19, 2000, and September 14, 2001, which further supported the BIA’s

adverse-credibility finding. In his asylum interview, Wulff denied that the National

Guardsmen had harmed him during the December 19, 2000, incident, but testified and

                                          7
provided other evidence that they caused him injuries that required medical attention.

As to the September 14, 2001, incident, Wulff testified that three Bolivarian Circles

members, who wore red berets, attacked him and Acevedo, and that the assault lasted

one hour. Wulff’s statement, however, indicates that there were four individuals

involved in this attack, and he told the asylum officer that the assault lasted a couple

of hours, and that his assailants wore regular clothes and wore no red.

      In light of the inconsistencies between Wulff’s testimony and the record, a

greater need for corroborative evidence arose. See Yang, 418 F.3d at 1201.

Substantial evidence, however, supports the BIA’s finding that Wulff’s corroborative

evidence did not resolve the inconsistencies. One of the police reports that the

petitioners submitted created one of the inconsistencies upon which the BIA relied,

and, in any case, the reports only relayed Wulff’s own statements regarding the

incidents that were made at least eight years after the incidents. Likewise, while the

medical documentation regarding the December 19, 2000, incident may have

provided some resolution as to whether Wulff suffered any harm that day, neither of

the medical reports spoke to any of the other inconsistencies that the BIA identified.

Wulff’s family members provided affidavits, but they only generally asserted that

Venezuelan officials persecuted Wulff and did not offer any basis to corroborate the




                                           8
specific facts of that alleged persecution. Finally, the petitioners’ remaining evidence

did not speak to the specifics of the alleged persecution against Wulff.

      Because of the inconsistencies between Wulff’s testimony and the record, and

the lack of sufficient corroborative evidence, substantial evidence supports the BIA’s

adverse-credibility finding. Although the petitioners asserted plausible explanations

for the inconsistencies throughout the proceedings, they were not such as to compel

a finding that Wulff testified credibly. See Chen, 463 F.3d at 1233. In light of the

adverse-credibility finding, the record does not compel a reversal of the BIA’s denial

of withholding of removal and CAT relief. Accordingly, we deny the petition for

review with respect to these claims.

      PETITION DISMISSED IN PART, DENIED IN PART.




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