                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               JUNE 26, 2007
                            No. 06-12334                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A97-926-362

INGRIDA MOCKEVICIENE,
VESTA MOCKEVICIUTE,

                                                        Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                       Respondent.


                      ________________________

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

                              (June 26, 2007)

                  ON PETITION FOR REHEARING

Before BIRCH, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
       We sua sponte grant rehearing in this case, vacate our prior opinion filed on

April 12, 2007 in its entirety, and substitute the following opinion in its place.

       Ingrida Mockeviciene and her daughter, Vesta Mockeviciute, seek review of

the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) order denying their application for withholding of removal under the

Immigration and Nationality Act (“INA”). Because the BIA’s determination that

Mockeviciene was not eligible for withholding of removal does not compel

reversal, we deny the petition.

                                      I. Background

       a.     Application and Testimony

       Mockeviciene and her daughter, Vesta, both Lithuanian citizens, were

admitted to the United States on April 20, 2000, as non-immigrant visitors and

overstayed their visas. On January 20, 2004, Mockeviciene filed an application

seeking asylum and withholding of removal, based on membership in a particular

social group, and for relief under the CAT.1

       In her application and at her hearing, Mockeviciene claimed that she was a

lesbian and had suffered persecution because of her sexual orientation.


       1
         The IJ found, and the BIA affirmed, that Mockeviciene’s asylum application was time-
barred. This finding is not challenged on appeal, and is, therefore, abandoned. Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). In addition, Mockeviciene makes no
argument as to relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), and so it too is abandoned.
                                                2
Specifically, Mockeviciene testified that from 1994 until she left the country in

2000, the Lithuanian police searched her apartment without a warrant, had her

terminated from her employment, improperly evicted her from her apartment, and

twice detained her and beat her, all on account of her sexual orientation.

Mockeviciene’s troubles with the police began in 1994 when she told her husband

that she was a lesbian. According to her, her husband beat and raped her while his

friends held her down. Mockeviciene reported the incident to the police. But

instead of assisting her, she claimed that the police searched her mother’s

apartment, where Mockeviciene was staying, presumably looking for “homosexual

literature.” The police did not detain Mockeviciene but told her that they would

“keep an eye on [her].” The next year, Mockeviciene found a job at a cleaning

company. She claimed that the police informed her employer that she was a

lesbian and caused her to be terminated.

      Mockeviciene testified that, in early 1997, a local police officer, Iankauskas,

questioned her at her apartment about her sexual orientation. Officer Iankauskas

expressed disgust at Mockeviciene’s lesbianism, physically molested her, and

threatened to make her life a “nightmare.” Mockeviciene’s neighbors became

openly hostile, and she attributed this hostility to her husband and the police

informing them all that she was a lesbian.



                                             3
      In September of 1997, Mockeviciene and her daughter went on a weekend

trip and when they returned they found another family living in their apartment

with appropriate documents. The neighbors called the police, who arrived and

arrested Mockeviciene and detained her daughter as well. At the station, an officer

explained that they had given away her apartment because they didn’t want a

lesbian living “in our district, our city or our country.” Mockeviciene claimed that

the officer then kicked her. She was detained for two days and then moved to a

nearby town. She continued to work at the same place she had before the eviction,

but lost that job in May of 1998 after her employer discovered she was a lesbian.

      In December of 1999, Mockeviciene received a notice to appear at the police

station in the village in which she was living. The new inspector, Pelvikes,

informed her that he was aware of her “record” and that he did not intend to have a

“debauchee” in his community. The next month, Mockeviciene received a letter

asking if she wanted to join a gay-lesbian community and, if so, requesting that she

send a picture to the return address. Mockeviciene did so and soon heard from a

woman named “Donata,” and they arranged to meet in March. At the appointed

meeting time, Mockeviciene was arrested by Inspector Pelvikes and “abused

verbally and physically” and threatened with three years’ imprisonment. She did

not provide any details regarding this abuse. Mockeviciene and her daughter left



                                          4
Lithuania to the United States, via the Netherlands, a month after this last

encounter with the police.

       Mockeviciene’s daughter, Vesta, also testified at the hearing. She

corroborated Mockeviciene’s testimony regarding the two-day detention after the

eviction as well as the hostile treatment from the neighbors. Vesta also testified

that she knew her mother was a lesbian.

       Mockeviciene submitted numerous documents in support of her asylum

application, including both official reports regarding the status of gays and lesbians

in Lithuania and personal letters from individuals who knew Mockeviciene in

Lithuania. Friends of Mockeviciene wrote that they knew she was a lesbian and

that she had been harmed by the police because of her orientation. The State

Department’s 2003 Country Report did not mention sexual orientation, but reports

from the Council of Europe and the United Kingdom described the discrimination

and violence that gays and lesbians face in Lithuania.

       b.      IJ Decision

       The IJ denied Mockeviciene’s application for asylum, withholding of

removal, and relief under CAT. The IJ found that Mockeviciene was not eligible

for asylum because her application was untimely.2 The IJ denied withholding of

       2
          An alien may seek asylum if she “demonstrates by clear and convincing evidence that
the application has been filed within 1 year after the date of the alien’s arrival in the United
States.” INA § 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application may be
                                                  5
removal and protection under CAT because she had not met her burden to show

past persecution on account of a protected status or a likelihood of future

persecution if removed.

       The IJ expressly found that Mockeviciene was not credible because,

primarily, he did not believe she was actually a lesbian. The IJ provided the

following reasons for his doubts regarding Mockeviciene’s professed sexual

orientation: (1) Mockeviciene “defined” being a lesbian as “a woman who wants

to be around other women and . . . it does not necessarily involve[] sexual

relationships”; (2) although she had been in the United States for four years, she

had not had a lesbian partner, so that she was “[a]t best . . . a non-practicing

lesbian”; (3) she had “no documents to establish that she is a lesbian,” and the

letters or notes she did submit were not originals and did not “mention with any

degree of specificity the lesbian relationships of [Mockeviciene], only addressing

the conclusion that [Mockeviciene] is indeed a lesbian”; (4) she had “not joined

any groups while being here in the United States for four years that involve[d]

lesbian activities”; (5) she did not produce any witnesses to “attest to the fact that

she is indeed a lesbian”; (6) she provided no documentation of her problems with

the police; and (7) although her mother was currently visiting her, her mother did


considered, however, if the alien shows extraordinary circumstances for the delay in filing a
timely application. INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D). No evidence of extraordinary
circumstances was presented.
                                                6
not testify at the hearing. The IJ also based his adverse credibility determination

on Mockeviciene’s demeanor during testimony.

       After finding Mockeviciene not credible, the IJ determined that, even

assuming that Mockeviciene was a member of a protected social group based on

her sexual orientation, she did not qualify for asylum because she failed to

establish that she was persecuted because of her membership in a particular social

group.3 The IJ found that the incidents that Mockeviciene testified about did not

constitute a threat to her life or freedom, and the incidents perpetrated by one

police officer were insufficient to establish that, even if she suffered persecution,

that the persecution was caused by the government. Furthermore, the IJ found that

the documents introduced into evidence indicated that (1) homosexuality had been

decriminalized in Lithuania, and (2) the Lithuanian President accepted the

credentials of the new Australian Ambassador who introduced his boyfriend to the

President at the ceremony, demonstrating that “homosexuality is at least somewhat

tolerated in Lithuania.” The IJ characterized Mockeviciene’s testimony as

amounting to, “at best . . . discrimination.” The IJ also determined that

Mockeviciene did not demonstrate the potential for future persecution or torture if

she returned to Lithuania.



       3
          The IJ noted that if Mockeviciene did not qualify under the asylum standard, she would
not qualify under the more difficult standard for withholding of removal.
                                                 7
      c.        BIA Decision

      Mockeviciene, aided by counsel, filed a Notice of Appeal to the BIA

claiming that the IJ erred in determining that Mockeviciene was not a lesbian and

therefore ineligible for asylum based on her membership in a particular social

group. She also challenged the IJ’s credibility determination and claimed that the

IJ demonstrated bias by his question of the daughter’s sexual orientation.4

Although Mockeviciene’s attorney indicated that he intended to file a separate

brief in support of the appeal, he did not do so. Instead, he filed a motion to

remand in order to seek adjustment of status as the spouse of a lawful permanent

resident based on Mockeviciene’s recent marriage.

      The BIA denied Mockeviciene’s motion to remand and affirmed the IJ’s

decision to deny Mockeviciene’s application. The BIA stated that Mockeviciene

had not submitted an application for adjustment of status or any evidence that her

husband had filed the appropriate visa petition. Furthermore, the BIA noted that an

immigrant visa would not be immediately available to Mockeviciene. Because

Mockeviciene did not establish her prima facie eligibility for adjustment of status,

the BIA denied her motion to remand.

      After briefly noting the IJ’s conclusions in his decision, the BIA found that

Mockeviciene’s subsequent marriage to a man undercut the credibility of her claim

      4
           The BIA found no evidence of bias, and this issue in not appealed.
                                                8
to be a lesbian and thus the IJ’s credibility determination was not clearly erroneous.

The BIA accepted the IJ’s “ultimate conclusion” that Mockeviciene did not

establish her burden of proof for asylum and therefore could not qualify for

withholding of removal or protection under the CAT.

      This petition follows.

                               II. Standard of Review

      We review the BIA’s legal conclusions de novo. D-Muhumed v. U.S. Att’y

Gen., 388 F.3d 814. 817 (11th Cir. 2004). We review the BIA’s factual findings

under the deferential substantial evidence test and will affirm its decision “if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. at 817-18 (11th Cir. 2004) (quoting Al Najjar, 257

F.3d at 1283-84) (quotations omitted). “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). “To reverse the IJ’s fact findings, we

must find that the record not only supports reversal, but compels it.” Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

                                    III. Discussion

      Mockeviciene petitions us to reverse the BIA’s determination that she was



                                            9
not persecuted on account of her status as a lesbian.5 The IJ rejected

Mockeviciene’s claim upon finding her testimony not credible. The BIA did not

expressly adopt the IJ’s findings regarding Mockeviciene’s lack of credibility but

rather found that the evidence of her recent marriage to a man supported the

finding that the IJ’s credibility determination was not clearly erroneous.

Mockeviciene argues that the BIA erred in referencing material, i.e., the motion to

remand for adjustment of status, that was not properly before the IJ. The BIA’s

scope of review is limited:

       Except for taking administrative notice of commonly known facts such as
       current events or the contents of official documents, the Board will not
       engage in factfinding in the course of deciding appeals. A party asserting
       that the Board cannot properly resolve an appeal without further factfinding
       must file a motion for remand. If further factfinding is needed in a particular




       5
           The government argues that we do not have jurisdiction to hear petitioner’s appeal
because she did not exhaust her administrative remedies before the BIA. See 8 U.S.C. §
1252(d)(1); see also Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (holding that this court
lacks jurisdiction to review a claim not raised in the appeal to the BIA) (quotation and citation
omitted).
        We review de novo whether we have subject matter jurisdiction. Gonzalez-Oropeza v.
U.S. Att'y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). “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 . . . .”
8 U.S.C. § 1252(d)(1).
        Mockeviciene’s Notice of Appeal is brief but it specifically challenges the IJ’s credibility
determination and denial of asylum. Although Mockeviciene does not specifically mention
withholding of removal, it is proper for us to treat an application for asylum to include an
application for withholding of removal. 8 C.F.R. § 208.3(b). We therefore have jurisdiction.
                                                   10
      case, the Board may remand the proceeding to the immigration judge or, as
      appropriate, to the Service.


8 C.F.R. § 1003.1(d)(3)(iv).

      The question before us then is whether the BIA may take into account

Mockeviciene’s recent marriage when reviewing the IJ’s credibility determination.

It is undisputed that her marriage was not before the IJ. Although the BIA is not

normally to engage in fact finding, this case falls into the “official documents”

exception in the regulations governing the BIA. Id. Mockeviciene herself

submitted the motion to remand for adjustment of status based on her recent

marriage. It would be absurd to allow the BIA to consider evidence of the

marriage in determining the motion and then bar the BIA’s consideration of the

very same evidence when evaluating the IJ’s credibility determination.

      We are skeptical of the reasoning the IJ used to determine his adverse

credibility finding. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.

2005) (holding that “the [BIA] must offer specific, cogent reasons for an adverse

credibility finding.”). The fact that Mockeviciene had not been in a recent

relationship with a woman is not probative of her sexual orientation. And contrary

to the IJ’s findings, Mockeviciene did not define being a lesbian as “not necessarily

involv[ing] sexual relationship,” but, rather, when the IJ asked her what she

thought being a lesbian meant, she responded that “[i]t doesn't have to be a sexual
                                          11
affair,” and added that “[s]ex is necessary between two lesbians. I want to say that I

want to have the sex with the woman. I cannot have it with a man.” Additionally,

the IJ’s statement that no witnesses attested to the fact that she was a lesbian is

incorrect, because her daughter testified that Mockeviciene was a lesbian. This

testimony and the affidavits provided extrinsic evidence of Mockeviciene’s

claimed sexual orientation that the IJ was required to consider.

      Nevertheless, it is not our role to evaluate the record anew. We are limited

to reviewing the BIA and IJ decisions and reversing only if the evidence compels

us to do so. Mendoza, 327 F.3d at 1287. Given Mockeviciene’s recent marriage,

the evidence does not compel reversal of the BIA’s credibility determination.

                                   IV. Conclusion

      The record before us, including evidence of Mockeviciene’s recent marriage,

does not compel a finding that the IJ’s credibility determination was in error.

Accordingly, we DENY Mockeviciene’s petition.




                                           12
