The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14117
Non-Argument Calendar
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Agency No. A094-826-997
FLORINDA MEJIA-LOPEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 2, 2015)
Before TJOFLAT, MARCUS and JULIE CARNES, Circuit Judges.
PER CURIAM:
Florinda Mejia-Lopez, a native and citizen of Honduras, seeks review of a
final order of the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of her application for statutory withholding of
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removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), and
withholding of removal under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), based on
an adverse credibility finding. Mejia-Lopez argues that: (1) the IJ did not act as a
fair and impartial arbiter because he was predisposed to make an adverse
credibility determination; and (2) the adverse credibility provision of the REAL ID
Act, 8 U.S.C. § 1229a(c)(4)(C), is unconstitutional on due process grounds. 1 After
thorough review, we dismiss the petition in part and deny it in part.
We review de novo our own subject matter jurisdiction. Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007). We lack jurisdiction to review a claim unless
the petitioner has exhausted her administrative remedies for that claim. 8 U.S.C. §
1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006) (holding that we lack jurisdiction to consider claims that have not been
raised before the BIA). We review only the BIA’s decision, except to the extent it
expressly adopts the IJ’s opinion or reasoning. Zhu v. U.S. Att’y Gen., 703 F.3d
1303, 1307 (11th Cir. 2013). When the BIA explicitly agrees with findings of the
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Mejia-Lopez also mentions the IJ’s and the BIA’s analysis of the evidence in the adverse-
credibility determination, but she does not expressly identify this as an issue she wishes to raise
on appeal. Accordingly, she has abandoned it on appeal. See Cole v. U.S. Att’y Gen., 712 F.3d
517, 530 (11th Cir. 2013) (“A party adequately raises an issue when the party specifically and
clearly identified it in its opening brief; otherwise, the claim will be deemed abandoned and its
merits will not be addressed.” (quotation omitted)). In any event, even if we were to consider
this issue, substantial evidence supports the agency’s adverse credibility determination.
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IJ, we 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).
First, we lack jurisdiction to review Mejia-Lopez’s argument that the IJ was
not fair and impartial. The Due Process Clause of the Fifth Amendment provides
that “[n]o person shall . . . be deprived of life, liberty, or property, without due
process of law. . . .” U.S. Const. amend. V. To establish due process violations in
immigration proceedings, an alien must show that she was deprived of liberty
without due process of law, and that the asserted errors caused her substantial
prejudice. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003).
“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 v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). While some due
process claims do not require exhaustion, “where the claim is within the purview
of the BIA which can provide a remedy, the exhaustion requirement applies with
full force.” Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (concluding
that the petitioner should have exhausted his due process challenge to the BIA’s
interpretation of an immigration statute before the BIA because the BIA had full
authority to reconsider its previous decision interpreting the statute).
In this case, Mejia-Lopez has failed to exhaust her claim. In her brief before
the BIA, she argued that the IJ erred by inserting his personal bias about what her
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demeanor should be like and in not being sensitive to the effect of prior abuse on
her ability to recall events with specificity. However, she did not raise before the
BIA the instant argument that the IJ was predisposed to make an adverse
credibility determination based on his overall rate of denying asylum applications
and his alleged “callous” statements. Although we’ve suggested that some due
process arguments may not require exhaustion, we’ve held that, where the BIA can
provide a remedy, the claim must be presented to the BIA. This “improper
predisposition” argument is an issue for which the BIA could have provided a
remedy -- indeed, it could have overturned the IJ’s decision if it found Mejia-
Lopez’s instant allegations of bias decisive. Because Mejia-Lopez failed to
exhaust this claim, we lack jurisdiction to review it.
As for her argument that the adverse credibility provision of the REAL ID
Act violated her due process rights, we are unpersuaded. The scope of judicial
review of immigration legislation is limited because “over no conceivable subject
is the power of Congress more complete . . . .” Fiallo v. Bell, 430 U.S. 787, 792
(1977) (quotation omitted). The Supreme Court “ha[s] long recognized the power
to expel or exclude aliens as a fundamental sovereign attribute exercised by the
Government’s political departments largely immune from judicial control.” Id.
(quotation omitted). In exercising its power over immigration, “Congress regularly
makes rules that would be unacceptable if applied to citizens.” Id. (quotation
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omitted). The Supreme Court held that it would not review immigration legislation
based on a congressional policy choice “under a more exacting standard” of review
than determining whether Congress had a “facially legitimate and bona fide
reason” for its choice. Id. at 794-95 (quotation omitted).
“[C]laims as to the unconstitutionality of the statutes and regulations
administered by [the BIA] are outside the scope of [its] jurisdiction.” Matter of
Valdovinos, 18 I. & N. Dec. 343, 345 (BIA 1982). Under the REAL ID Act, an IJ
making a credibility determination may consider
the demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements (whenever
made and whether or not under oath, and considering the circumstances
under which the statements were made), the internal consistency of each
such statement, the consistency of such statements with other evidence of
record (including the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1229a(c)(4)(C).
Here, although Mejia-Lopez did not exhaust this claim before the BIA, we
have jurisdiction to consider it because she asserts the unconstitutionality of the
REAL ID Act, which is outside the scope of the BIA’s jurisdiction. Nevertheless,
Mejia-Lopez has failed to demonstrate that the adverse credibility provision of the
REAL ID Act is unconstitutional on due process grounds. Specifically, Congress’s
interest in controlling immigration to this country constitutes a “facially legitimate
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and bona fide reason” for its decision to provide a series of factors for IJs to
consider in determining whether an alien’s account is credible and would support
relief from removal. Moreover, to the extent that she challenges the
constitutionality of an IJ’s ability to base an adverse credibility determination on
“any inaccuracies or falsehoods” in a petitioner’s application or testimony,
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim,” she has failed to provide any persuasive argument
as to why this does not comport with Congress’s interest in limiting immigration.
Thus, we deny the petition for review as to this issue.
PETITION DISMISSED IN PART, DENIED IN PART.
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