                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 SEPTEMBER 29, 2005
                           Nos. 03-10144 & 04-12400               THOMAS K. KAHN
                          ________________________                    CLERK
                             BIA No. A75-362-530


BADRIYA AXMED,
                                                   Petitioner,

                                      versus


U.S. ATTORNEY GENERAL,

                                                   Respondent.


                          ________________________

                      Petitions for Review of an Order of the
                          Board of Immigration Appeals
                          _________________________

                              (September 29, 2005)

Before BIRCH, CARNES and FAY, Circuit Judges.

FAY, Circuit Judge:
       Badriya Axmed petitions this court to review the Immigration Judge’s denial

of asylum, and the Board of Immigration Appeals’ denial of her motion to reopen.1

Regarding the first issue, substantial evidence supports the Immigration Judge’s

finding that Axmed was not credible and therefore not eligible for asylum. Axmed

failed to establish that the Immigration Judge was biased, and the Board of

Immigration Appeals did not violate her constitutional right by affirming the

Immigration Judge’s decision without an opinion. With regard to the second issue,

the Board of Immigration Appeals did not abuse its discretion by denying Axmed’s

motion to reopen because her motion was filed untimely. We affirm.



                                I. Procedural Background

       On September 4, 1997, Badriya Axmed, a native citizen of Somalia, entered

the United States without a valid immigration visa or any other valid entry

document. On February 3, 1998, the Immigration and Naturalization Service

(hereafter referred to as “INS”) issued Axmed a notice to appear, charging her with

removability under INA § 237(a)(1)(A), codified at 8 U.S.C. § 1227(a)(1)(A), as

an alien immigrant not in possession of a valid, unexpired entry document. Axmed


       1
         This court consolidated Axmed’s petition on appeal. Appeal No. 03-10144 is the petition
for review of the Board of Immigration Appeals affirmance of the Immigration Judge’s final
removal order. Appeal No. 04-12400 is the petition for review of the Board of Immigration
Appeals denial of Axmed’s motion to reopen.

                                               2
applied for asylum and withholding of removal, alleging past persecution based on

her membership in a particular tribal group in Somalia. In her application for

asylum Axmed states the relevant facts as to why her application should be

granted.

                         II. Relevant Factual Background

      Axmed testified that she is a member of the Midgan tribe and could be

identified as a Midgan in any part of Somalia. The Midgan clan was one of several

groups that were termed “outcastes” because, traditionally, they could only marry

among themselves, and other clans considered them to be ritually polluted. The

U.S. State Department Somalia Country Report on Human Rights Practices for

1997 (hereafter referred to as “1997 Report”) asserted that serious interclan

fighting continued in Mogadishu and Kismayo. This fighting was prompted by the

militia members who supported Mogadishu leader Hussein Aideed. Any member

of the Midgan group that supported the former president, Mohamed Siad Barre,

was vulnerable to retaliation.

      Axmed stated that her father was murdered by the Hawiye clan because he

used to work for the military during the Siad Barre regime. She testified that she

did not actually witness her father’s murder, but people in town told her about his

death, and she viewed his dead body in the street. She claims that members of the



                                          3
Hawiye militia shot down her father in the street while walking home from work.

Axmed further testified that Hawiye militia searched for people who worked for

the previous government, and they killed her father because they knew that he had

worked for the government during the Siad Barre regime.

      In Addition, Axmed testified that in 1991, while living in Mogadishu, seven

Hawiye clan members broke down her door and entered her house. She claimed

that she believed the Hawiye men came to her house because they knew her father

had worked for the military and they wanted to take things from her home. She

stated that she, her children and her mother were able to hide in a backroom while

the men searched her house. She testified that while hiding, she was able to see the

Hawiye men take her brother out to the street and kill him. She testified further that

the Hawiye men raped her sister and eventually took her away with them. Axmed

stated that she did nothing because she feared for her life and the life of her

remaining family members.

      Finally, Axmed alleges that on route to Kenya, Hawiye units stopped her

family three times in order to determine if they had been affiliated with the Siad

Barre government. According to the testimony of Axmed, she was approached by

Hawiye militia and asked what clan she belonged to. She explained to them that

she was Hawiye. She claimed that one of the members knew her father and was



                                           4
certain that she was a member of the Midgan clan. After hearing that she was not

Hawiye, one of the men hit Axmed in the back with a shotgun. The man then

grabbed her by the hair, knocked her head into a wall, and slashed her leg with the

bayonet on his gun. She testified that she fell down and was losing a lot of blood.

She then claims that the man might have raped her, but she was not sure because of

her head injury and loss of blood.

       Axmed petitions for review of the Immigration Judge’s (hereafter referred to

as “IJ”) removal order, which became a final agency determination when the Board

of Immigration Appeals (hereafter referred to as “BIA”) affirmed the IJ’s decision

without an opinion.2 Axmed argues the IJ made the following errors: (1) denying

her asylum application based on a determination of her credibility; (2) not

accepting the fact that Axmed proved she was persecuted for being a member of

the Midgan clan; (3) finding her allegations were implausible; and (4) in failing to

rule that Axmed is entitled to withholding of removal because her life and freedom

would be threatened in Somalia.

       In addition, Axmed argues that the BIA abused its discretion by denying her

motion to reopen because an application for asylum may be introduced at any time

if the conditions in the applicant’s country have changed.


       2
        The BIA did this pursuant to 8 C.F.R. § 3.1(e)(4), which has been renumbered to 8
C.F.R. § 1003.1(e)(4) effective February 28, 2003.

                                               5
                                 III. Standard of Review

       The IJ’s factual determinations are reviewed under the substantial evidence

test. Al Najjar v. Ashcroft, 257 F.3d 1262,1283-84 (11th Cir. 2001). This court is

obligated to affirm, if the IJ’s decision is supported by reasonable, substantial, and

probative evidence on the record. Najjar, 257 F.3d at 1283-84. To the extent that

the IJ’s decision was based on a legal determination, review is de novo.

Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.2001). This court

reviews the BIA’s denial of Axmed’s motion to reopen for an abuse of discretion.

Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,1340 (11th Cir.2001).



            IV. Substantial Evidence Supports the IJ’s Determination

       Axmed contends that the IJ’s credibility determination was not supported by

substantial evidence. She asserts that the IJ erred in basing her credibility on minor

inconsistences in her testimony, and that it would be impossible for her to provide

evidence for every claim she testified to. Although slight deference is given to an

applicant who has no way of supporting certain testimony, the general rule is that

an asylum applicant carries the burden of proving “refugee”3 status and credibility


       3
        According to 8 U.S.C. § 1101(a)(42)(A) a “refugee” is: “any person who is outside any
country of such person’s nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of that country because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,

                                               6
throughout the immigration proceeding. Al Najjar, 257 F.3d 1262 at 1284.

       Moreover, the Immigration Judge is in the best position to weigh the

inconsistencies and credibility of an applicant, and this court will not second guess

his judgement unless it was not supported by substantial evidence. See D-

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir.2004)(declaring when

the IJ enumerates an applicant’s inconsistences and is supported by the record,[this

court] will not substitute [its] judgement for that of the IJ with respect to its

credibility findings’; see also Sarvia-Quintanilla v. Immigration and Naturalization

Serv., 767 F.2d 1387, 1395 (9th Cir. 1985)(stating that an Immigration Judge alone

is in the position to observe an alien’s tone and demeanor, to explore

inconsistences in testimony, and to apply workable and consistent standards in the

evaluation of testimonial evidence). In the instant case, the IJ simply did not

believe Axmed’s testimony.

       In the case at bar, Axmed clearly falls into the definition of a “refugee.”

Axmed alleges that because she is a member of the Midgan social tribe, she will

face persecution if ordered to return to Somalia. In order to establish asylum

eligibility, Axmed must, with specific and credible evidence, establish (1) past

persecution on account of one on the statutorily listed factors mentioned above, or


membership in a particular social group, or political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A)
(2005).

                                                 7
(2) have a “well founded-fear” that the above factors will cause future persecution.

Al Najjar, 257 F.3d at 1287. If the IJ makes a determination of lack of credibility,

this court will have great reluctance to rule otherwise since the one observing any

witness is in the best position to make a determination.

       From the record it appears that the IJ carefully considered all the evidence

throughout the hearing and concluded that Axmed was not credible. The IJ

concluded that Axmed was not a member of the Midgan clan, as she was not able

to explain any distinguishing features of the Midgan people. She was questioned

extensively on the topic of her being a member of the Midgan tribe, yet Axmed

was only able to provide basic information about the culture. Furthermore, her

testimony that people throughout Somalia knew she was Midgan was vague an

unpersuasive.

       Axmed failed to rebut the forensic report which called into question the

authenticity of her Somalian identity card, an identity card that the IJ determined to

be fraudulent.4 Axmed testified that she carried the identity card between her body

and her clothes for several years before traveling to the United States. However,

when examined by the forensic team, the analyst determined the card to be clean



       4
        The use of fraudulent documents to establish an essential element of an asylum claim
impacts the heart of the asylum claim and indicates the alien’s lack of credibility. See Akinmade
v. Immigration and Naturalization Service, 196 F.3d 951, 955-56 (9th Cir.1999).

                                                8
and the paper to be stiff. In addition, there were discrepancies concerning the

identity card’s authenticity. The analyst determined that portions of the seal were

hand drawn, and the word Mogadishu was spelled incorrectly.

      Furthermore, the IJ disbelieved her story that seven Hawiye men broke into

her house, killed her brother and raped her sister. The IJ found it implausible that

seven men, who were breaking into this small house to steal valuables, would not

discover Axmed, her two children, or her mother hiding in the back of this house.

In addition, the IJ found that Axmed’s allegation that she was beaten and raped for

being associated with the Midgan tribe was an utter fabrication.

      Finally, the IJ disbelieved her story that she was able to enter the United

States without any documentation or without being asked any administrative

questions. The IJ found that Axmed’s story that she flew into New York with a

man that provided her with a Somalian identification card to be highly unlikely.

Axmed testified that she was given an identification card, and once she arrived

safely in New York, the man took it back. In addition, Axmed testified that she

never directly spoke to any official when entering the United States.

      Axmed argues that this court should remand her case to the BIA in order for

it to make a credibility determination. See Immigration and Naturalization Serv. v.

Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002)(stating



                                           9
that if the [11 th Circuit] concludes that the IJ’s credibility determination was not

supported by substantial evidence, it should remand the case to the BIA to

determine whether the applicant’s asylum claim would succeed on the merits).

Although Axmed cites correct law for this proposition, it simply is not applicable.

The IJ’s finding of lack of credibility is supported by substantial evidence.



                                   V. Frivolous Application

       Axmed argues that the IJ erred in finding that her application was frivolous,

however, she failed to exhaust this argument before the BIA. Consequently, this

court is without jurisdiction to review the claim. See INA § 242(d)(1), 8 U.S.C. §

1252(d)(1) 5; see also Fernandez-Bernal v. Att’y Gen. of the United States, 257

F.3d 1304, 1317 (11 th Cir.2001).



                                       VI. Due Process

       Axmed contends that the hearing before the IJ was fundamentally unfair,

and in violation of her due process rights because the IJ acted with bias and

hostility towards her. Specifically, Axmed contends that the IJ was antagonistic



       5
            This section reads in pertinent part, “A court may review a final order of removal only
if . . . the alien has exhausted all administrative remedies available to the alien as of right.” INA
§ 242(d)(1), 8 U.S.C. § 1252(d)(1).

                                                  10
towards her during the hearing, that this particular IJ has the lowest rate of asylum

grants in the country, and that she was not allowed to use her own interpreter. All

three arguments are without merit. In order for Axmed to establish a due process

violation, she must show that she was deprived of liberty without due process of

law, and that error caused her substantial prejudice. See Mathews v. Diaz, 426 U.S.

67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); see also Ibrahim v. U.S.

Immigration and Naturalization Srv., 821 F.2d 1547, 1550 (11th Cir.1987).

       Regarding the IJ’s alleged bias toward granting asylum, not only did Axmed

fail to present any evidence supporting this allegation, she failed to exhaust this

issue before the BIA. Therefore this issue is waived. With regards to the finding of

a frivolous application, there is nothing in the record to support such a claim. The

IJ was legally obligated to warn Axmed of the consequences of filing a frivolous

asylum application. See INA § 208(d)(4), 8 U.S.C. § 1158(d)(4)(A)(providing that

“the Attorney General shall . . . advise the alien . . . of the consequences . . . of

knowingly filing a frivolous application for asylum. The claim that inadequate

translation services resulted in a due process violation is equally without merit. The

record reflects that the IJ allowed an interpreter of Axmed’s choice to sit with her

and her counsel and allowed Axmed to object to any translation she felt was

erroneous. Furthermore, the few translations that Axmed argues are inaccurate did



                                            11
not affect the outcome of her case.



                    VII. BIA’s Affirmance without Opinion.

      Axmed asserts that BIA erred in affirming the IJ’s’s decision without

opinion. The BIA’s decision to affirm without opinion is within the absolute

discretion of the agency. A single BIA member may affirm an IJ’s decision without

opinion if the BIA member determines that the decision under review was correct,

any errors were harmless and nonmaterial, the issues on appeal are squarely

controlled by existing precedent, and the issues are not so substantial as to warrant

a written decision. See 8 C.F.R. § 1003.1(e)(4). In addition, this court has held that

an affirmance without a full written opinion does not violate the applicant’s due

process rights. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283(11th

Cir.2003)(holding the BIA's summary affirmance of the alien's removal did not

violate any due process rights because under the Immigration and Naturalization

Service's regulations, no entitlement to a full opinion by the BIA existed). The

ruling by the BIA is proper and in accord with existing precedent.




                                          12
                    VIII. BIA’s Denial of Motion to Reopen

      Axmed contends that the BIA abused its discretion by denying her motion to

reopen her asylum application. She argues that her case should be reopened and

remanded to allow her to apply for a withholding of removal based upon factors

that did not exist at the time of her hearing. Axmed asserts that the birth of her

American daughter and the implementation of the United Nations Convention

Against Torture (hereafter referred to as “CAT”) creates a material change in her

circumstances. She contends that her motion to reopen should be granted so that

she can provide evidence that her youngest daughter will be a victim of “female

genital mutilation.” Axmed also wants to “stand in the shoes” of her youngest

daughter’s possible persecution in order to allow her to stay in this country.

      Although this court realizes how cruel and inhumane female genital

mutilation is, Axmed failed to timely file her motion to reopen, and asylum is only

available to aliens who are personally at risk. An alien may file one motion to

reopen, which shall state the new facts that will be proven at a hearing to be held if

the motion is granted, and shall be supported by affidavits or other evidentiary

material. INA § 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7)(A). A motion to reopen must

be filed within 90 days of the entry of a final administrative order of removal. The

BIA did not abuse its discretion by denying Axmed’s motion to reopen, as it was


                                          13
filed in November 2003, more than 90 days after the BIA affirmed the IJ’s final

removal order in December 2002.

      The only relevant exception to this rule is that there is no time limit for filing

a motion to reopen an application for asylum based on material and previously

unavailable evidence of changed country conditions. INA § 240(c)(7)(C)(ii), 8

U.S.C. § 1229a(c)(7)(C)(ii). Axmed contends that the possibility of her youngest

daughter having to undergo female genital mutilation is sufficient changed

circumstances for her case to be reopened.

      With regard to this issue, this court has not yet decided a case involving a

derivative asylum claim based upon an alien’s fear that her American-born child

may be forced to undergo female genital mutilation. However, the Seventh Circuit

and the Ninth Circuit have decided similar issues. See Oforji v. Ashcroft, 354 F.3d

609, 618 (7th Cir. 2003); see also Azanor v. Ashcroft, 364 F.3d 1013, 1021-22 (9th

Cir. 2004). In both Oforji and Azanor, the courts held that an alien parent who has

no legal standing to remain in the United States, may not establish a derivative

claim for asylum by pointing to the potential hardship of their American-born

children. According to the record, Axmed’s youngest daughter was born in the

United States, making her an American citizen. There is no evidence that if Axmed

was sent back to Somalia that her daughter would be forced to travel to that


                                          14
country. Consequently, we find no abuse of discretion.

                                 IX. Conclusion

   Substantial evidence supports the IJ’s determination that Axmed was not

credible and therefore not eligible for asylum. The IJ did not violate Axmed’s due

process rights, because there was no evidence that the IJ was biased or hostile

towards Axmed, and the IJ was obligated according to INA § 208(d)(4), 8 U.S.C. §

1158(d)(4) to warn Axmed of the consequences of filing a frivolous application.

As to the summary affirmance, according to 8 C.F.R. § 1003.1(e)(4) and Mendoza,

the BIA is within its discretionary power to affirm a case without a full written

opnion. With regard to the BIA’s denial of the motion to reopen, the motion was

untimely filed, as it was filed more than 90 after the BIA’s affirmance of the IJ’s

removal order. In additon, Axmed failed to demonstrate a prima facie case for

relief, because an application for asylum may not be reopened for the fear of her

daughters potential genital mutilation. For all of these reasons we affirm.

AFFIRMED.




                                          15
