           Case: 14-11267   Date Filed: 03/31/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11267
                        Non-Argument Calendar
                      ________________________

                       Agency No. A079-377-772



BEATRIZ EUGENIA ZULUAGA HINCAPIE,

                                                                      Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (March 31, 2015)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Beatriz Zuluaga Hincapie, a native and citizen of Colombia proceeding pro

se, seeks review of the Board of Immigration Appeals’ (“BIA”) final order

affirming the Immigration Judge’s (“IJ”) finding that she was removable for

procuring documentation by fraud and not being in possession of valid

documentation at the time of entry or adjustment of status, and for procuring

documentation by entering into a fraudulent marriage. First, Zuluaga Hincapie

challenges the IJ’s and BIA’s admission of, and reliance upon, three sworn

statements. In particular, she argues that: (1) the three statements were not

reliable; (2) the statement of her ex-husband was not properly admitted as rebuttal

evidence; and (3) the admission of the statements violated her due process rights to

examine the evidence and cross-examine the witnesses against her. Further, she

contends that substantial evidence did not support the IJ’s and BIA’s conclusion

that she entered into a fraudulent marriage in order to obtain an immigration

benefit. For ease of reference, we will address each point in turn.

                                          I.

      We review our own subject matter jurisdiction de novo. Gonzalez-Oropeza

v. U.S. Att’y Gen, 321 F.3d 1331, 1332 (11th Cir. 2003). Pursuant to the

Immigration and Nationality Act (“INA”), we may not review a final order of

removal unless “the alien has exhausted all administrative remedies available to the

alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner has failed to exhaust her


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administrative remedies by not raising an issue in her notice of appeal or appeal

brief filed with the BIA, we lack jurisdiction to consider the claim. Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). To

properly raise a claim before the BIA, the petitioner must give the agency a “full

opportunity” to consider the petitioner’s claim and compile a record adequate for

judicial review. Id. at 1250 (quotations omitted). The petitioner must mention the

issue and discuss its merits or at least challenge the underlying factual basis for the

IJ’s decision. See Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006).

      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). When the BIA explicitly agrees with the

findings of the IJ, we will review the decision of both the BIA and the IJ as to

those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).

      Additionally, we review constitutional challenges, including alleged due

process violations, de novo. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th

Cir. 2010).

      The Fifth Amendment right to due process applies to non-citizens in removal

proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 1449 (1993). “In

order to establish a due process violation, an alien must show that [she] was

deprived of liberty without due process of law, and that the asserted error caused


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[her] substantial prejudice.” Gonzalez-Oropeza, 321 F.3d at 1333 (citation

omitted). “To show substantial prejudice, an alien must demonstrate that, in the

absence of the alleged violations, the outcome of the proceeding would have been

different.” Lapaix, 605 F.3d at 1143. Although the Federal Rules of Evidence do

not apply in immigration proceedings, Garces v. U.S. Att’y Gen., 611 F.3d 1337,

1347 (11th Cir. 2010), to safeguard due process rights, the INA provides that an

alien shall have, among other things, “a reasonable opportunity to examine the

evidence against the alien.” 8 U.S.C. § 1229a(b)(4)(B).

      Finally, the rules governing immigration court procedure state that the

“requirements set forth in [the] manual are binding on the parties who appear

before the Immigration Courts, unless the Immigration Judge directs otherwise in a

particular case.” U.S. Dep’t of Justice, Exec. Office for Immig. Rev., Immigration

Court Practice Manual (“Practice Manual”), § 1.1(b). In pertinent part, the

Practice Manual states that “[f]or individual calendar hearings involving non-

detained aliens, filings must be submitted at least fifteen (15) calendar days in

advance of the hearing.” Id. § 3.1(b)(ii)(A). However, this rule does not apply to

“exhibits or witnesses offered solely to rebut and/or impeach.” Id.

      As an initial matter, we lack jurisdiction to consider Zuluaga Hincapie’s

argument that the IJ erred in determining that the three sworn statements were

unreliable because she failed to exhaust her administrative remedies as to this


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claim. See Amaya-Artunduaga, 463 F.3d at 1250-51. Zuluaga Hincapie did not

argue on appeal to the BIA that the three statements were not genuine or that the IJ

incorrectly found that they bore sufficient indicia of reliability. Accordingly, we

dismiss the petition for review as to this argument.

      Taking Zuluaga Hincapie’s remaining arguments in turn, we find that the IJ

properly admitted her ex-husband’s sworn statement as rebuttal evidence. At the

removal hearing, Zuluaga Hincapie testified, among other things, that her ex-

husband was not gay and that they had not married in order for her to gain an

immigration benefit. Her ex-husband’s sworn statement directly contradicted her

testimony because he stated that (1) he was gay; (2) they had never consummated

their marriage; and (3) they had married so that she could remain in the United

States. Because the Government introduced the statement in order to impeach

Zuluaga Hincapie, it was not required to file the statement 15 days prior to the

hearing, and the IJ did not commit any error by admitting the statement. See

Practice Manual, § 3.1(b)(ii)(A).

      Moreover, Zuluaga Hincapie has failed to demonstrate that the IJ violated

her due process right to examine the evidence against her. Two of the three sworn

statements were filed by the Government and placed in the administrative record

18 months before the removal hearing, and it was apparent from the record that

Zuluaga Hincapie had the opportunity to view them. Furthermore, while her


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former husband’s sworn statement was not filed until the day of the hearing,

Zuluaga Hincapie has not demonstrated how having prior access to the statement

would have changed the outcome of her proceedings. Thus, she has failed to

establish that she was substantially prejudiced. See id.; Gonzalez-Oropeza, 321

F.3d at 1333.

      Likewise, Zuluaga Hincapie has not established that she was substantially

prejudiced by the IJ’s admission of the three sworn statements. Importantly,

Zuluaga Hincapie did not make a timely objection to the first two statements at her

removal hearing, and thus, she forfeited her objection to the admission of that

evidence. Ocasio v. Ashcroft, 375 F.3d 105, 107-08 (1st Cir. 2004). The third

sworn statement by her ex-husband merely corroborated these two properly-

admitted statements. Even if the Court assumes that admission of her ex-

husband’s affidavit was a due process violation, Zuluaga Hincapie has not shown

that the outcome of the proceeding would have been different in light of the record

before the IJ and BIA. See Indrawati v. U.S. Att’y Gen., No. 13-12071, 2015 WL

871709, at *11 (11th Cir. Mar. 2, 2015).

                                           II.

      We review factual determinations, including findings of removability, under

the substantial evidence test. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th

Cir. 2004) (en banc). The substantial evidence test requires us to “view the record


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

reasonable inferences in favor of that decision.” Id. at 1027. We must affirm the

BIA’s decision “if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1254-55 (11th Cir. 2006) (quotations omitted). Accordingly, in order for us

to conclude that a finding of fact should be reversed, we must determine that the

record “compels” reversal. Id. at 1255 (quotations omitted). The Government

bears the initial burden of establishing, by clear and convincing evidence, that an

alien is removable. 8 U.S.C. § 1229a(c)(3)(A).

      Substantial evidence supports the IJ’s and the BIA’s conclusion that Zuluaga

Hincapie was removable because she entered into a fraudulent marriage with her

ex-husband for the purpose of obtaining an immigration benefit. The evidence in

the record established that Zuluaga Hincapie’s ex-husband was gay and in a

relationship with her brother, and Zuluaga Hincapie and her ex-husband married in

order to allow her to remain in the United States once her visa expired. As such,

the IJ’s and BIA’s conclusion was based on substantial evidence, and the record

does not “compel” a conclusion contrary to that reached by the BIA and the IJ. See

Ruiz, 440 F.3d at 1255. Accordingly, we deny Zuluaga Hincapie’s petition for

review as to this claim.

      PETITION DISMISSED, IN PART, AND DENIED, IN PART.


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