USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-12864 Non-Argument Calendar ________________________ Agency No. A208-599-279 REYNA NICOLAS ANDRES, S. N., G. N., Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 24, 2021) Before JILL PRYOR, LUCK and MARCUS, Circuit Judges. PER CURIAM: Reyna Nicolas Andres, proceeding pro se as the lead petitioner, and her two children seek review of the order of the Board of Immigration Appeals (“BIA”) USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 2 of 12 affirming the Immigration Judge’s (“IJ”) denial of her application for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a), withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c). In her petition, Andres argues that: (1) the agency erred in determining that she failed to establish either past persecution or a well-founded fear of future persecution; and (2) the IJ violated her Due Process rights to a fair hearing by not allowing her expert witness to testify. After careful review, we deny the petition in part and dismiss it in part. We review the BIA’s decision as the final judgment, except to the extent it expressly adopts the IJ’s opinion or reasoning. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). When the BIA adopts the IJ’s reasoning, we review both decisions. Id. We review our own subject matter jurisdiction de novo. Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1283 (11th Cir. 2009). While we retain jurisdiction over final orders of removal, we “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). The exhaustion requirement is jurisdictional and precludes our review of a claimant’s argument that was not presented to the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). 2 USCA11 Case: 20-12864 Date Filed: 09/24/2021 Page: 3 of 12 We review factual findings under the substantial evidence test. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). Under this test, we must affirm factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019) (quotation omitted). We view the evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of it. Perez-Zenteno, 913 F.3d at 1306. “An argument that the agency applied the wrong legal standard in making a determination constitutes a legal question” that we review de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We also review constitutional challenges …
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