           IN THE UNITED STATES COURT OF APPEALS
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                          FOR THE FIFTH CIRCUIT                               FILED
                                                                              May 4, 2009

                                     No. 08-60069                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BERHANU YOHANNES AMOSIE; TERUWORK GEBRWOLD ELORO, also
known as Teruwork Gebrwold Cheveny

                                                   Petitioners

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA Nos. A75 480 599
                                          A75 480 600


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Berhanu Yohannes Amosie and Teruwork Gebrwold Eloro, a married
couple who are natives and citizens of Ethiopia, petition this Court for a review
of a decision of the Board of Immigration Appeals (BIA). The BIA dismissed the
petitioners’ appeal of an order of an Immigration Judge (IJ) denying their
applications for asylum, withholding of removal, and relief under the Convention

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 08-60069

Against Torture (CAT). The BIA concluded that the petitioners had not met
their burden of demonstrating eligibility for relief because their claim lacked
sufficient consistency and plausibility to provide a coherent account of the events
allegedly resulting in their fear of return to Ethiopia. In so ruling, the BIA
upheld the IJ’s finding that the petitioners were not credible.
       The petitioners now argue that the IJ erred in finding certain of their
factual allegations implausible and in finding that, in light of these
implausibilities, the corroborating evidence supporting their claims was
insufficient. They also argue that (1) they were credible witnesses because they
testified consistently throughout the proceedings; (2) the IJ’s adverse credibility
finding was not supported by specific, cogent reasons; and (3) the BIA abused its
discretion in adopting the adverse credibility finding because it was based purely
on speculation and conjecture.
       This Court generally reviews only the BIA’s decision; however, we may
review the IJ’s decision to the extent that it influences the BIA. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). Here, the BIA approved of and relied on the
IJ’s credibility findings; thus, we review the findings of the IJ. See Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994).1 Factual findings are reviewed for substantial
evidence, with great deference given to the IJ’s credibility determinations. Id.
However, this Court “cannot substitute [its] judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations.”         Id.   Therefore, this Court “will not review
decisions turning purely on the immigration judge’s assessment of the alien
petitioner’s credibility.” Id. (internal quotation marks and citation omitted).
This Court will, however, review the record to determine whether an adverse



       1
         Although the REAL ID Act sets out new credibility standards, these standards do not
apply, with one exception not applicable here, because Petitioner filed his asylum application
before the May 11, 2005, effective date of the new provisions. See REAL ID Act §§ 101(a)(3),
(h)(2), Pub. L. 109-13, 119 Stat. 231, 302-23.

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credibility determination is “supported by specific and cogent reasons derived
from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
      Furthermore, a court can review a final order of removal only when “the
alien has exhausted all administrative remedies available to the alien as of
right.”   8 U.S.C. § 1252(d)(1).      “Failure to exhaust an issue creates a
jurisdictional bar as to that issue.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004). “An alien fails to exhaust his administrative remedies with respect to an
issue when the issue is not raised in the first instance before the BIA - either on
direct appeal or in a motion to reopen.” Id.
      The petitioners did not raise their specific challenges to the facts found to
be implausible by the IJ and the BIA on appeal to the BIA or in a motion to
reopen the proceedings. They likewise did not challenge the finding that the
documentary evidence was suspect and insufficient to establish their claims in
light of the aforementioned implausibilities. Because the BIA has adequate
mechanisms to address and remedy these claims and because they were not
presented to the BIA, this Court lacks jurisdiction to consider the petitioners’
arguments challenging the specific factual findings of the IJ and BIA as well as
the conclusion that the documentary evidence was suspect and insufficient to
establish their claims. See id.; see also Goonsuwan v. Ashcroft, 252 F.3d 383, 390
(5th Cir. 2001).
      To the extent that this Court has jurisdiction to consider the petitioners’
arguments challenging the adverse credibility finding generally, the petitioners’
claims are unavailing. The IJ and the BIA gave specific, cogent reasons for the
adverse credibility determination that were based on the petitioners’ testimony
and documentary evidence contained in the record. See Zhang, 432 F.3d at 344.
“[W]here the judge’s credibility determinations are supported by the record, we
will affirm them even if we may have reached a different conclusion, because we
will reverse only if the record compels a different conclusion.” Mwembie v.
Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (internal quotation marks and

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citation omitted). The record in this case does not compel a different conclusion
regarding the petitioners’ lack of credibility. Rather, the record as a whole
supports the adverse credibility determination.
      Because “[w]e cannot substitute our judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations . . . we will not review decisions turning purely on
the immigration judge’s assessment of the alien petitioner’s credibility.” Chun,
40 F.3d at 78. The denial of relief in this case was based on the finding that the
petitioners failed to provide a plausible claim, and the adverse credibility
determination was supported by specific, cogent reasons. We therefore decline
to review the decision denying relief in this case. See id.
      The petitioners also argue that (1) the BIA abused its discretion when it
did not address their argument regarding the IJ’s exclusion of testimonial
evidence; (2) the IJ abused his discretion by excluding witness testimony; and
(3) the IJ violated the petitioners’ due process rights by excluding witness
testimony. These issues were not argued on appeal to the BIA or raised in a
motion to reopen the proceedings.
      Although the petitioners mentioned three times in their brief to the BIA
that the IJ had disallowed new witness testimony at a hearing to recreate a
portion of Amosie’s 2003 testimony that had not been transcribed, the petitioners
did not make any specific argument with respect to this fact.          “[W]hen a
petitioner does file a brief, the BIA is entitled to look to the brief for an
explication of the issues that petitioner is presenting to have reviewed.
Petitioner will therefore be deemed to have exhausted only those issues he
raised and argued in his brief before the BIA.” Abebe v. Mukasey, 548 F.3d 787,
791 (9th Cir. 2008) (emphasis added). A fair reading of the brief that the
petitioners submitted to the BIA in 2005 reveals that the issue regarding the
exclusion of witness testimony was not exhausted. See Roy, 389 F.3d at 137; see
also Goonsuwan, 252 F.3d at 390.

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      Although the petitioners’ have argued that their due process rights were
violated by the exclusion of witness testimony, and an exception to the
exhaustion requirement exists for claims of due process violations, the exception
does not apply to “ procedural errors that are correctable by the BIA.” Roy, 389
F.3d at 137. The petitioners’ argument concerns procedural error correctable by
the BIA and is therefore subject to the exhaustion requirement. See id. Because
it is unexhausted, we lack jurisdiction to consider it.
      The petition for review is DISMISSED IN PART for lack of jurisdiction
and DENIED IN PART.




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