                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               NOV 20, 2008
                            No. 08-11801                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency Nos. A98-677-709
                             A98-677-708

CARLOS ALBERTO GALARRAGA-AGUILAR,
ARELIS ESTHER GALARRAGA DE AGUILAR,
CARLOS EDUARDO GALARRAGA-AGUILAR,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                          (November 20, 2008)

Before DUBINA, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
       Petitioners Arelis Esther Galarraga de Aguilar (“Arelis”), Carlos Alberto

Galarraga-Aguilar (“Carlos”), and Carlos Eduardo Galarraga-Aguilar (“Carlos

Eduardo”) (collectively, “the Aguilars”) seek review of the Board of Immigration

Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying

their applications for asylum and withholding of removal under the Immigration

and Nationality Act (“INA”) and relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman, and Degrading Treatment or

Punishment (“CAT”), INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. §

208.16(c). The BIA and the IJ denied the Aguilars’ claim for asylum as time-

barred pursuant to 8 U.S.C. § 1158(a)(2)(B). Both the BIA and the IJ found that

the Aguilars had not met their burden for asylum and, as a result, had necessarily

failed to meet the more stringent burden for withholding of removal.1

       In their petition, the Aguilars argue that the BIA and the IJ erred in making

an adverse credibility determination and in finding that they did not meet the

burdens for asylum and withholding of removal.

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

extent that the BIA expressly adopts the IJ’s decision. Al-Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt any part

       1
        The Aguilars have not raised the issue of the denial of their CAT claim on appeal.
Accordingly, they have abandoned the argument, and we will not review the BIA’s denial of
CAT relief. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
                                               2
of the IJ’s decision, but it affirmed the IJ’s decision and agreed with its reasoning

in its own opinion. As a result, we review both the BIA’s and the IJ’s decisions.

                                           I.

      Pursuant to 8 U.S.C. § 1158(a)(3), we conclude that we lack jurisdiction to

review the BIA’s determination that an asylum applicant filed an untimely

application and failed to establish changed or extraordinary circumstances to

excuse his untimely filing. Fahim v. Att’y Gen., 278 F.3d 1216, 1217-18 (11th

Cir. 2002). Here, both the BIA and the IJ found that the Aguilars’ applications

were untimely and that they had failed to establish changed or extraordinary

circumstances to excuse the untimeliness. Accordingly, we decline to review the

BIA’s denial of the Aguilars’ claim for asylum.

                                          II.

      The BIA’s factual determinations are reviewed under the substantial

evidence test, and we must affirm the decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar, 257 F.3d at 1284 (internal quotation marks and citation omitted). The

substantial evidence test is “deferential” and does not allow “re-weigh[ing] the

evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th

Cir. 2001) (quoting Lorisme v. I.N.S., 129 F.3d 1441, 1444-45 (11th Cir. 1997)).

We review the record evidence in the light most favorable to the agency’s decision
                                           3
and may not overturn findings of fact unless the record compels it. Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The fact that evidence in the

record may also support a conclusion contrary to the administrative findings is not

enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004).

         An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of DHS has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:

         any person who is outside any country of such person’s nationality or,
         in the case of a person having no nationality, is outside any country in
         which such person last habitually resided, 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, membership in a particular social group, or political
         opinion.

         8 U.S.C. § 1101(a)(42)(A).

         The asylum applicant carries the burden of proving statutory “refugee”

status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien

must, with specific and credible evidence, establish (1) past persecution on

account of a statutorily listed factor, or (2) a “well-founded fear” that the

statutorily listed factor will cause such future persecution. 8 C.F.R. § 208.13(a),

                                            4
(b); Al Najjar, 257 F.3d at 1287. An asylum applicant may not show merely that

he has a political opinion, but must show that he was persecuted because of that

opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S. Ct. 812, 816, 117 L.

Ed. 2d 38 (1992). We have held that “persecution,” as used to illustrate that an

alien has suffered past persecution, “is an extreme concept, requiring more than a

few isolated incidents of verbal harassment or intimidation, and . . . mere

harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231

(quotation and alteration omitted).

      If the alien establishes past persecution, it is presumed that his life or

freedom would be threatened upon return to the country of removal unless the

government shows by a preponderance that the country’s conditions have changed

such that the applicant’s life or freedom would no longer be threatened or that the

alien could relocate within the country and it would be reasonable to expect him to

do so. 8 C.F.R. §§ 208.13(b), 208.16(b). An alien who has not shown past

persecution may still be entitled to asylum if he can demonstrate a future threat to

his life or freedom on a protected ground in his country. 8 C.F.R.

§§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an applicant

must show that he has a fear of persecution in his home country and that “[t]here

is a reasonable possibility of suffering such persecution if he or she were to return

to that country.” 8 C.F.R. § 208.13(b)(2)(i). We have opined that “the precise
                                           5
contours of the ‘well-founded fear’ inquiry continue to evolve.” Al Najjar, 257

F.3d at 1289. However, we have held that “an applicant must demonstrate that his

or her fear of persecution is subjectively genuine and objectively reasonable.” Id.

“An asylum applicant’s voluntary return to his or her home country is a relevant

consideration in determining whether the asylum applicant has a well-founded

fear of future persecution.” De Santamaria v. U.S. Atty. Gen., 525 F.3d 999,

1011 (11th Cir. 2008). An applicant’s claim of persecution may be weakened or

undermined by a voluntary return to a home country. Id.

      When a petitioner fails to “establish a claim of asylum on the merits, he

necessarily fails to establish eligibility for withholding of removal.” Forgue, 401

F.3d at 1288 n.4. This is because the standard for withholding of removal is

significantly higher than the asylum standard. See Al-Najjar, 257 F.3d at 1292-

93.

      We review credibility determinations under the substantial evidence test.

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18 (11th Cir. 2004). “[T]his

court may not substitute its judgment for that of the BIA with respect to credibility

findings.” Id. at 818. In order to review a credibility determination, the IJ or BIA

must explicitly state that the applicant’s testimony was not credible. See Yang v.

U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).

        [T]he IJ [or BIA] must offer specific, cogent reasons for an adverse
                                            6
      credibility finding. Once an adverse credibility finding is made, the
      burden is on the applicant alien to show that the IJ’s [or BIA’s]
      credibility decision was not supported by specific, cogent reasons or
      was not based on substantial evidence. A credibility determination,
      like any fact finding, may not be overturned unless the record
      compels it.

Forgue, 401 F.3d at 1287 (internal citations and quotations omitted).

      If credible, an alien’s testimony may be sufficient, without

corroboration, to sustain his burden of proof in establishing his eligibility

for relief from removal. Id. “Conversely, an adverse credibility

determination alone may be sufficient to support the denial of an asylum

application.” Id. However, if an applicant produces evidence other than his

testimony, “it is not sufficient for the IJ to rely solely on an adverse

credibility determination in those instances.” Id.

      The record here demonstates that both the BIA and the IJ explicitly

found that Arelis’s testimony was not credible and gave specific, cogent

reasons for discrediting Arelis’s testimony. Moreover, because the record

shows that much of Arelis’s testimony was vague, implausible, and

inconsistent, substantial evidence supports the BIA’s and IJ’s determination

that her testimony was not credible. Additionally, because the Aguilars

presented only weak evidence, apart from Arelis’s testimony, to support

their claims for asylum and withholding of removal, there was substantial

                                        7
evidence to support the BIA’s and the IJ’s determination that the Aguilars

failed to meet the burden for asylum and, accordingly, failed to meet the

more stringent burden for withholding of removal. As a result, we cannot

say that the record compels reversal of the BIA’s and IJ’s finding that the

Aguilars failed to meet the burden for withholding of removal.

       For the above-stated reasons, we dismiss the petition in part and deny

it in part.

       DISMISSED IN PART, DENIED IN PART.




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