           Case: 14-13181   Date Filed: 02/09/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-13181
                         Non-Argument Calendar
                       ________________________

                        Agency No. A088-662-152



DARIUS PANUMIS,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                            (February 9, 2015)

Before HULL, WILSON, and BLACK, Circuit Judges.

PER CURIAM:
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       Darius Panumis, a citizen of Lithuania, petitions for review of the Board of

Immigration Appeals’s (BIA) order affirming the Immigration Judge’s (IJ) denial

of his application for asylum and request for withholding of removal and relief

under the United Nations Convention Against Torture (CAT). 1 On appeal,

Panumis argues that the BIA and the IJ erroneously gave substantial weight to the

Form I-2132 Record of Deportable/Inadmissible Alien in support of their adverse

credibility determinations. Specifically, he argues the Form I-213 was highly

prejudicial, unreliable, carried little probative value, and, consequently, should not

have been admitted. In addition, Panumis argues that the BIA’s affirmance of the

IJ’s adverse credibility determination was erroneous because it is not supported by

substantial evidence in the record, and, therefore, requires reversal. In conjunction

therewith, Panumis requests that we remand his case to the BIA for further

adjudication of his asylum and withholding of removal claims.

       Upon a thorough review of the entire record, and after consideration of the

parties’ briefs, we deny Panumis’s petition for review in part and dismiss it in part.

                                                I.



       1
          Panumis does not argue his CAT relief claim on appeal, and thus has abandoned it. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (issues not
raised on appeal are deemed abandoned).
        2
          A Form I-213 is routinely completed when an illegal immigrant present in the United
States is apprehended by law enforcement. It contains personal information including the date
and place of birth, familial relations, photographs, and finger prints. See, e.g, Ghysels-Reals v.
U.S. Atty. Gen., 418 F. App’x 894, 894 n.1 (11th Cir. 2011) (per curiam).
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      As a preliminary matter, we must first determine whether we have

jurisdiction to review the BIA’s and the IJ’s adverse credibility finding as it

specifically relates to Panumis’s asylum claim since the BIA and the IJ determined

that his asylum claim was time-barred—Panumis’s application was filed

approximately ten years after he entered into the United States. We recognize that

Panumis does not specifically argue on appeal that the BIA and the IJ erred in

determining that his application for asylum was untimely. Rather, on appeal,

Panumis focuses his arguments primarily on both the BIA’s and the IJ’s adverse

credibility findings. However, in so doing, Panumis asserts that as a result of the

adverse credibility findings below, this court should remand his case to the BIA for

further adjudication of his asylum and withholding of removal claims.

      “We review subject-matter jurisdiction de novo.” Ruiz v. Gonzales, 479

F.3d 762, 765 (11th Cir. 2007). An application for asylum must be filed within

one year of entering the United States. 8 U.S.C. § 1158(a)(2)(B). “An application

for asylum of an alien may be considered, notwithstanding [a failure to file it

within one year] if the alien demonstrates . . . either the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an application.” 8

U.S.C. § 1158(a)(2)(D). However, no court has jurisdiction to review any

determination of the Attorney General under § 1158(a)(2), which includes whether


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or not an “alien [has] demonstrat[ed] by clear and convincing evidence that the

application [was] filed within 1 year after the date of the alien’s arrival in the

United States.” Id. § 1158(a)(3), (2)(B). Therefore, we are divested of jurisdiction

to review whether an alien complied with the time limit for filing an application for

asylum. See Ruiz, 479 F.3d at 765 (holding that this court lacks jurisdiction to

review the denial of asylum when the basis of the denial is the alien’s failure to

comply with the one-year time limit).

      For these reasons, we conclude that we lack jurisdiction to review the BIA’s

affirmance of the IJ’s adverse credibility finding as it relates specifically to

Panumis’s asylum claim. Therefore, our review of Panumis’s petition is limited to

Panumis’s challenge to the BIA’s and the IJ’s adverse credibility determinations

only as they relate to the denial of his withholding of removal claim. Accordingly,

we dismiss Panumis’s petition for review to the extent it challenges the denial of

his application for asylum.

                                           II.

      “When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen.,

504 F.3d 1341, 1344 (11th Cir. 2007). If the BIA issues its own decision but relies

in part on the IJ’s reasoning, we review both decisions to the extent that the BIA

relied on the IJ’s reasoning. See Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140,


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1153 (11th Cir. 2014). Here, the BIA issued its own decision regarding the IJ’s

reliance on the Form I-213, but also agreed with some of the IJ’s reasoning

concerning Panumis’s inconsistencies. Thus, to that limited extent, we review both

decisions. See id.

                                          A.

      Panumis argues that the BIA and the IJ erroneously gave substantial weight

to the Form I-213 Record of Deportable/Inadmissible Alien in support of their

adverse credibility determinations. Panumis asserts that this was erroneous

because the Form I-213 was highly prejudicial, unreliable, carried little probative

value, and, consequently, should not have been admitted as evidence in his

deportation proceedings. In addition, Panumis argues that the BIA’s and the IJ’s

adverse credibility determinations were erroneous because those determinations

were not supported by substantial evidence in the record. Consequently, Panumis

asserts that the denial of his withholding of removal claim requires reversal for

further adjudication.

      We review agency legal determinations de novo and factual determinations

under the substantial-evidence test. Lopez, 504 F.3d at 1344. Under the

substantial-evidence test, this Court “must affirm the decision if it is supported by

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

whole.” Id. (internal quotation marks omitted). This test also requires us to


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“review the record evidence in the light most favorable to the agency’s decision

and draw all reasonable inferences in favor of that decision.” Diallo v. U.S. Att’y

Gen., 596 F.3d 1329, 1332 (11th Cir. 2010) (per curiam) (internal quotation marks

omitted). We reverse findings of fact “only when the record compels a reversal.”

Id. (internal quotation marks omitted).

      The Federal Rules of Evidence do not apply in immigration proceedings.

See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir. 2010) (noting that

“it is a well-settled principle that the Federal Rules of Evidence do not apply in

administrative proceedings”) (internal quotation marks omitted). Evidence is

admissible in deportation proceedings if it is probative and its use is fundamentally

fair. In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999). “[A]bsent any

evidence that a Form I-213 contains information that is incorrect or was obtained

by coercion or duress, that document is inherently trustworthy and admissible as

evidence to prove alienage or deportability.” Id.

      Credibility determinations are factual findings reviewed under the

substantial-evidence test. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817–18

(11th Cir. 2004). To rebut an adverse-credibility determination, an applicant must

show that it is “not supported by specific, cogent reasons or was not based on

substantial evidence.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir.

2011) (per curiam) (internal quotation marks omitted). Absent corroborating


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evidence, “an adverse credibility determination may be sufficient to support the

denial of an application [for withholding of removal].” Id. (internal quotation

marks omitted).

       A trier of fact considering the totality of the circumstances may base his

credibility determination on all relevant factors, which include: (1) demeanor,

candor, or responsiveness of the applicant; (2) the inherent plausibility of the

applicant’s account; (3) the consistency between the applicant’s written and oral

statements; (4) the internal consistency of each such statement; (5) the consistency

of such statements with other evidence in the record; (6) 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. 8 U.S.C. §

1158(b)(1)(B)(iii).3 Although an applicant may provide tenable explanations for

implausibilities in his claim, tenable explanations alone do not compel reversal.

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

(reasoning that an alien’s tenable explanations, absent corroborating evidence, did

not compel reversal of the IJ’s adverse-credibility determination).

       To receive withholding of removal, an applicant “must show that his life or

freedom would be threatened in [the] country [of removal] because of [his] race,


       3
         Although 8 U.S.C. § 1158(b)(1)(B)(iii), controls credibility determinations in the
context of applications for asylum, the same standard applies to credibility determinations made
in the context of withholding of removal. 8 U.S.C. § 1231(b)(3)(C).
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religion, nationality, membership in a particular social group, or political opinion.”

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (per curiam)

(internal quotation marks omitted). The burden of proof for withholding of

removal is “more likely than not.” Id.

      In the present case, we find no evidence in the record to establish that the

use of the Form I-213 during Panumis’s deportation proceedings was inconsistent

with fundamental fairness or that the Form I-213 contained information that was

incorrect or that was obtained coercively. The Form I-213 was probative of

Panumis’s credibility because it was documentary evidence that allowed the BIA

and the IJ to assess the consistency of Panumis’s statements. In addition, its use

was not fundamentally unfair because Panumis had the opportunity to contest the

Form I-213’s allegations, despite the fact that he was unable to cross-examine the

agent who made the allegations. The Confrontation Clause of the Sixth

Amendment only applies in criminal proceedings. See U.S. Const. amend. VI.

      Further, the record indicates that neither the IJ nor the BIA relied exclusively

on the Form I-213 in making credibility findings. See Shkambi v. U.S. Atty. Gen.,

584 F.3d 1041, 1051 (11th Cir. 2009) (per curiam) (affirming adverse credibility

determination when the IJ did not rely exclusively on omissions from an airport

interview to discredit an applicant). While Panumis asserts that the Form I-213

was inadmissible for several reasons that are akin to traditional evidentiary


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objections, the Federal Rules of Evidence do not apply in immigration

proceedings, and documents are admissible if they are probative and their use is

fundamentally fair. See Garces, 611 F.3d at 1347; In re Ponce-Hernandez, 22 I. &

N. Dec. at 785. Therefore, we conclude that the IJ properly admitted and credited

the Form I-213 because it was probabtive of Panumis’s credibility and its use was

consistent with fundamental fairness. See In re Ponce-Hernandez, 22 I. & N. Dec.

at 785.

       We also conclude that the BIA’s and the IJ’s finding that Panumis lacked

credibility is supported by substantial evidence in the record and that the BIA and

the IJ offered specific, cogent reasons for their determinations. The BIA and the IJ

cited numerous contradictions and inconsistencies between Panumis’s testimony

and other documentary evidence found in the record in support of their adverse

credibility determinations, which included but was not limited to: (1) the fact that

the Form I-213 provided a completely different account of Panumis’s time in the

United States than was provided by his subsequent testimony; (2) the fact that

Panumis testified that his father was approached several times and beaten, but

made no mention of these beatings in his Form I-5894; (3) the fact that Panumis

testified that his sister was never physically harmed, but later testified that she had


       4
          A Form I-589 is used by people that are already in the United States who are not United
States citizens who wish to apply for asylum and withholding of removal. This form details the
reasons why a person is applying for this status.
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been pushed against a wall and choked; (4) the fact that Panumis testified that after

he arrived in the United States he attended naval school for two months, but later

testified that he had finished naval school in one day; and (5) the fact that Panumis

testified that while he was held captive as a victim of human trafficking, his

captors punched him in the nose which caused his nose to bleed everywhere, but

later testified that he was only pushed and punched in the stomach—during which

his captors continued to yell at him.

      Since the BIA’s and the IJ’s determinations that Panumis lacked credibility

is supported by reasonable, substantial, and probative evidence in the record

considered as a whole, and since Panumis has failed to rebut these determinations

by showing that these adverse credibility determinations were not supported by

specific, cogent reasons, or were not based on substantial evidence, we must affirm

the decision of the BIA. See Carrizo, 652 F.3d at 1332; see also Lopez, 504 F.3d

at 1344. We also note that Panumis does not argue on appeal that the documentary

evidence in the record establishes that more likely than not his life or freedom

would be threatened on the basis of his race, nationality, political opinion, or his

membership in a particular social group should he return to Lithuania. See Ruiz,

440 F.3d at 1257. Accordingly, Panumis’s petition for review of his request for

withholding of removal is denied.

      PETITION DISMISSED IN PART AND DENIED IN PART.


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