           Case: 12-11895   Date Filed: 01/29/2013   Page: 1 of 11




                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11895
                         Non-Argument Calendar
                       ________________________

                        Agency No. A078-345-050


ANTONIA LARGAESPADA,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                            (January 29, 2013)


Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Antonia Largaespada, a Nicaraguan citizen that entered the United States in

the early 1990s, seeks review of the Board of Immigration Appeals’ (BIA) decision

affirming the Immigration Judge’s (IJ) order denying her applications for

adjustment of status under the Nicaraguan Adjustment and Central American

Relief Act (NACARA), Pub. L. No. 105–100, § 202, 111 Stat. 2160, 2193 (1997);

Temporary Protected Status (TPS); asylum under the Immigration and Nationality

Act (INA) § 208(a), 8 U.S.C. § 1158(a); withholding of removal under INA §

241(b)(3), 8 U.S.C. § 1231(b)(3); and withholding of removal under the United

Nations Convention Against Torture (CAT), 8 C.F.R. § 208.16(c). 1

       Before we can discuss their merits, we must establish whether we have

jurisdiction over Largaespada’s various claims. We review our subject matter

jurisdiction de novo. Frech v. United States Att’y Gen., 491 F.3d 1277, 1280 (11th

Cir. 2007).

                                     I.    DISCUSSION

                                                   A.


1
  The government argues that Largaespada has “abandoned any challenge to the Board’s
decision” because “her brief omits citations to the certified administrative record that would
support her arguments.” Although we may decline to exercise jurisdiction where a petitioner
fails to comply with Federal Rule of Appellate Procedure 28(a)(9)(A), we are not required to do
so and will not do so here. See Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1286 n.4
(11th Cir. 2003). Largaespada “specif[ies] the underlying facts upon which [she] bases [her]
arguments, and those facts are readily ascertainable in the . . . record,” so we exercise our
discretion to consider her petition. See id.
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      Largaespada’s first contention is that the BIA and IJ each “erred when they

found that [she] was not eligible for adjustment of status pursuant to NACARA.”

By statute, our review of final orders of removal is limited to instances where “the

alien has exhausted all administrative remedies available . . . as of right.” 8 U.S.C.

§ 1252(d)(1). We have interpreted this provision to mean that we also “lack

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

has exhausted his administrative remedies with respect thereto,” regardless of

whether the BIA has addressed the claim sua sponte. Amaya-Artunduaga v.

United States Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006) (emphasis

added).

      Largaespada did not raise her claim for adjustment of status under

NACARA in her appeal to the BIA. Based on our precedent, we lack jurisdiction

to review that claim, even though the BIA addressed it sua sponte. Id.

                                               B.

      Next, Largaespada contends that both the BIA and IJ were wrong in

determining that she is not eligible for TPS. We have jurisdiction to review the

denial of TPS based on a determination that an alien is statutorily ineligible. Mejia

Rodriguez v. United States Dep’t of Homeland Sec., 562 F.3d 1137, 1144–45 (11th

Cir. 2009). “We review only the Board’s decision, except to the extent that it

expressly adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning,

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we will review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001) (citation omitted).

      TPS may be granted when the Secretary of the Department of Homeland

Security (Secretary) “determines that certain conditions exist in a country . . . that

results in a substantial, but temporary, disruption of living conditions in the area

affected, and designates that foreign state for inclusion in the TPS program.”

Mejia Rodriguez, 562 F.3d at 1140 (quotation marks and footnote omitted). An

alien is eligible for TPS if she is a national of the country designated for TPS, and:

(1) has been continuously physically present in the United States since the

effective date designating that country for such status; (2) has continuously had a

residence in the United States since the date designated by the Secretary; (3) is

admissible to the United States as an immigrant, or has established her eligibility

for a waiver of inadmissibility; and (4) registers during the initial registration

period designated by the Secretary. See 8 U.S.C. § 1254a(c). Where an alien

failed to register for TPS during the initial registration period, she may apply for

late registration “[d]uring any subsequent extension of such designation” if she

establishes, among other things, that “at the time of the initial registration period . .

. [she had] an application for change of status, adjustment of status, asylum,

voluntary departure, or any relief from removal . . . pending or subject to further

review or appeal.” See 8 C.F.R. § 1244.2(f)(2).

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      Nicaragua was first designated for inclusion in the TPS program on January

5, 1999 due to devastation caused by Hurricane Mitch. See Designation of

Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01 at 526 (Jan. 5,

1999). The initial TPS registration period ran until July 5, 2000. Id. Later, the

registration period was extended to August 20, 1999. See Extension of the

Registration Period for Hondurans and Nicaraguans Under the Temporary

Protected Status Program, 64 Fed. Reg. 42991-02 at 42991 (Aug. 6, 1999). Since

then, Nicaragua’s TPS designation has been extended a number of times, most

recently on November 4, 2011. See Extension of the Designation of Nicaragua for

Temporary Protected Status and Automatic Extension of Employment

Authorization Documentation for Nicaraguan TPS Beneficiaries, 76 Fed. Reg.

68493 at 68493 (Nov. 4, 2011).

      The IJ found that Largaespada did not qualify for TPS because she failed to

register during the initial registration period of January 5 to July 5, 1999, and she

had no applications for adjustment of status pending prior to 2000. The BIA

adopted and affirmed the IJ’s determination, adding that Largaespada “provided no

reasonable basis” for her claim on appeal that “she qualifie[d] as a late registrant

because she ‘honestly believed’ that she had a pending NACARA application

during the initial [TPS] registration period for Nicaragua in 1999.”




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      The IJ’s determination of when Largaespada applied for adjustment of

status, and the BIA’s determination that no reasonable basis supported

Largaespada’s claim that she honestly believed she had previously applied for

adjustment of status under NACARA, are each questions of fact. “[T]he IJ’s

factual determinations are reviewed under the substantial evidence test, and we

must affirm the IJ’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Ruiz v. United States

Att’y Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006) (quotation marks and

alterations omitted); see also § 1252(b)(4)(B) (“[A]dministrative findings of fact

are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary . . . .”). “Under the substantial evidence test, we view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035, 125 S. Ct.

2245, (2005). “We can reverse a finding of fact by the BIA only when the record

compels a reversal; the mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.” Mehmeti v.

United States Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009) (quotation marks

omitted).




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      Largaespada does not dispute the IJ’s determination that she failed to apply

for TPS during the initial registration period. Instead, she reasserts the claim that

she made on appeal to the BIA—that she “honestly believed that she had an

application for Adjustment of Status pending at the time of the initial period for

registration under TPS”—and adds that the BIA “violated her Constitutional right

to Due Process” by “overlooking the uncontroverted AFFIDAVIT” she submitted

in support of that belief.

      Largaespada’s argument fails. First, the plain language of the regulation

governing late registration for TPS requires that an application for adjustment of

status be “pending” at the time of the initial registration period, not that a person

merely believed that an application was pending. See 8 C.F.R. § 1244.2(f)(2)(ii).

But even if we assume without deciding that an alien’s honest belief that she filed

an application would be enough to satisfy the requirements for late TPS

registration, nothing in the record indicates that Largaespada actually filed an

affidavit attesting to such a belief. At the same time, Largaespada submitted an

affidavit stating that she applied for adjustment of status under NACARA on

March 29, 2000, well beyond the August 20, 1999 extended deadline for TPS

registration.

      Having failed to provide the BIA with any evidence to support her claim that

she “honestly believed” that an application for adjustment of status was pending,

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and having provided the IJ with actual evidence that her application was filed only

as of March 29, 2000, we cannot say that the record compels reversal on the BIA’s

determination that she “provided no reasonable basis for her belief that she filed an

application” prior to or during the TPS registration window. Likewise, insofar as

there is nothing in the record to support her assertion that she “honestly believed

that . . . in 1999 she had a pending application under NACARA,” we cannot agree

that “the Board and the Immigration Judge violated her Constitutional right to Due

Process” by “overlooking” it. For these reasons, Largaespada’s argument that the

BIA and IJ each erred in finding her ineligible for TPS relief fails.

                                               C.

      Next, Largaespada contends that “[t]he Board and the Judge erroneously

found that [she] waited too long a period of time to submit her asylum application

and that [she] did not submit evidence that there was any exceptional circumstance

or changed condition that would forgive her lack of filing.” Our law is clear,

however, that we lack jurisdiction to review the BIA’s determination that an

asylum application was untimely filed. 8 U.S.C. § 1158(a)(3). Our lack of

jurisdiction extends both to the decision that the application was not filed within

the one-year time limit for asylum applications, and the decision that the applicant

did not establish extraordinary circumstances that would excuse the untimely filing




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of her application. Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 957

(11th Cir. 2005). We therefore lack jurisdiction to consider this claim.

                                               D.

      Finally, Largaespada argues that the BIA and IJ each erred in denying her

application for withholding of removal and CAT relief based on the IJ’s adverse

credibility determination. Contrary to the IJ’s assessment that she “was not a

credible witness” at her removal proceeding, Largaespada contends that her

testimony was “plausible, detailed, internally consistent, . . . and unembellished.”

Because the BIA expressly adopted the IJ’s opinion, we review both the BIA’s and

the IJ’s analysis. Al Najjar, 257 F.3d at 1284.

      A credibility determination is a factual determination. Again, we review

factual determinations under the substantial-evidence test and must affirm such

determinations if they are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Ruiz, 440 F.3d at 1254–55. “[W]e

may not substitute our judgment for that of the IJ with respect to credibility

findings,” and “we review the record evidence in the light most favorable to the

agency’s decision.” Id. at 1255 (quotation marks and alterations omitted). It is

incumbent upon the IJ, however, to provide “specific, cogent reasons for an

adverse credibility finding.” Id. (quotation marks omitted). “Once an adverse

credibility finding is made, the burden is on the applicant alien to show that the IJ’s

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credibility decision was not supported by specific, cogent reasons, or was not

based on substantial evidence.” Id. (quotation marks and alterations omitted).

      Here, the IJ supported her adverse credibility determination with specific,

cogent reasons. The IJ noted “a number of discrepancies” between Largaespada’s

written application for relief and her testimony at her removal hearing. These

discrepancies included the year Largaespada left Nicaragua; when she arrived in

Honduras en route to the United States; when her common-law husband deserted

the Sandinista military and whether he was murdered or disappeared after he

deserted; whether or not she saw her husband and conceived a child with him after

he deserted; and what kind of problems, if any, she and her family members had

with the Nicaraguan government. In adopting and affirming the IJ’s determination,

the BIA reiterated Largaespada’s “inconsistencies and vague statements . . .

concerning when [her] husband deserted the army, what happened to him

afterwards, and when [she] left Nicaragua.”

      Other than to note that her testimony was about events that “occurred more

than 20 years ago” Largaespada provides no explanations for her inconsistent

testimony. Thus, she has failed to show that the “IJ’s credibility decision was not

supported by specific, cogent reasons, or was not based on substantial evidence,”

and her argument that the IJ and BIA each erred in determining that she was not a




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credible witness is not persuasive.2 Ruiz, 440 F.3d at 1255 (quotation marks and

alterations omitted).

       “If the applicant produces no evidence other than his testimony, an adverse

credibility determination is alone sufficient to support the denial of an . . .

application.” See Forgue v. United States Att’y Gen., 401 F.3d 1282, 1287 (11th

Cir. 2005). Substantial evidence supports the IJ’s adverse credibility determination

here. Also, to the extent that Largaespada failed to produce corroborating evidence

for the IJ to consider and the IJ found her testimony was not credible, substantial

evidence also supports the IJ’s denial of Largaespada’s withholding of removal and

CAT claims. See id. at 1287–88.

                                    II.    CONCLUSION

       For these reasons, Largaespada’s petition is

       DISMISSED in part, and DENIED in part.




2
  Largaespada also suggests that the IJ’s adverse credibility determination was informed by the
IJ’s “years [of] clear hostility” towards her lawyer. This argument fails as well. First, it does
nothing to explain the inconsistencies in Largaespada’s testimony. Second, to the extent that it is
intended to suggest a due process claim, the BIA correctly noted that Largaespada has failed to
demonstrate “that she was deprived of liberty without due process of law and that the purported
errors caused her substantial prejudice,” as is required to prove a due process violation. Lapaix
v. United States Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
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