                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                               AUGUST 28, 2007
                             No. 06-16400                     THOMAS K. KAHN
                         Non-Argument Calendar                    CLERK
                       ________________________

                  BIA Nos. A79-471-018 & A79-086-616

GLORIA ISABEL SOLANO,
MAURICIO EDGARDO VELLOJIN,

                                                         Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.


                       ________________________

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

                             (August 28, 2007)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Gloria Isabel Solano, on behalf of herself and her husband (hereinafter

“petitioners”), petitions for review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the immigration judge’s (“IJ”) denial of her applications for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”) and the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,

1231, 8 C.F.R. § 208.16(c). On appeal, the petitioners argue that substantial

evidence did not support the BIA’s finding that the petitioners failed to present a

credible claim for relief. For the reasons discussed more fully below, we dismiss

the petition in part and deny in part.

                                    I. Background

      Solano, a native and citizen of Colombia, entered the United States on

December 23, 2000, as a nonimmigrant visitor for pleasure, with authorization to

remain until June 22, 2001. Solano’s husband, Mauricio Edgardo Vellojin, also a

native and citizen of Colombia, arrived in the United States on August 2, 2001, as a

nonimmigrant visitor for pleasure, with authorization to remain until February 1,

2002. The petitioners remained beyond their authorized dates and the Immigration

and Naturalization Service (“INS”) 1 served them with notices to appear, charging

      1
        The INS was abolished on March 1, 2003, and replaced with the Department of
Homeland Security (“DHS”). See Homeland Security Act, Pub.L.No. 107-296 (Nov. 25, 2002),
116 Stat. 2135.
                                             2
them with removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

A. Application and Removal Hearing

      On April 11, 2001, Solano filed an application for asylum, withholding of

removal, and withholding of removal under the CAT based upon her political

opinion and membership in a particular social group. In a statement attached to her

application, Solano attested as follows. In Colombia, Solano had worked as the

Director of the Library at the Institute of Beauty Arts (“Institute”) and had been a

member of the Liberal Party. Her duties as Director included distributing and

receiving publicity notices, organizing meetings and cultural events, inviting

political candidates to visit the Institute, and collecting signatures and distributing

flyers for special causes. On October 9, 2000, while she was engaged in displaying

publicity notices around the Institute, she found a package of pamphlets from the

National Liberation Army (“ELN”), which included a letter that requested that

Solano distribute the pamphlets to students, collaborate with the ELN’s cause, and

stop promoting the Liberal Party’s ideas. Solano informed the Institute’s

committee members about the incident, who advised her to destroy the pamphlets

and not tell anyone else about the incident.

      On November 17, 2000, a man approached Solano as she was talking with a

group of students and told her that, “we gave you a mission.” Solano was afraid

and she told her husband about the encounter, but he asked her to calm down and
                                            3
wait until the end of the academic semester, which was almost over, “to see what

happened.” On December 4, 2000, she received a phone call at her office in which

“they” told her that she had to collaborate with them and that they knew her steps.

The caller also asked her whether her job was more important than her life.

Because of her fear, Solano left work and later called the Institute, told them what

had happened, and informed them that she wanted to quit her job. The supervisors

at the Institute asked her to give them a resignation letter, “so [she] decided to

work until December 15.”

      Solano further attested that, on December 20, 2000, she received a

threatening phone call in which “they” indicated that Solano would pay for her

treason. Due to her fear, she and her husband left their house that night, stayed at a

friend’s house, and decided to leave for the United States on December 23, 2000.

Her husband returned to Colombia on January 19, 2001, but did not return to their

house. She also indicated that she was aware that “mail” and “packets” had arrived

at her house and that “strange people” had asked her porter about her whereabouts.

      In May 2003, Solano testified at a removal hearing before the IJ. According

to her testimony, she had informed the “head” of the Institute, her husband, and the

President of the Liberal Party about the first communication that she received from

the ELN. Solano further testified that she had obtained a visa in August 2000

because her husband previously had traveled to the United States to visit his aunt
                                           4
and had told Solano how wonderful it was. After she and her husband had been in

the United States for one month, her husband returned to Colombia for treatment

of his chronic sinusitis because they did not have insurance in the United States.

Her husband received medicine from a clinic in Colombia and he also worked

while in Colombia, but did not go back to their house. Her husband returned to the

United States in August 2001, because it took him eight months to get his medical

problem under control. On cross-examination, Solano testified that her husband

received one threatening phone call while back in Colombia, but that he believed it

was a joke and the caller did not identify himself as a member of the ELN.

B. IJ’s and BIA’s Decisions

      The IJ denied the petitioners’ applications for asylum, withholding of

removal, and CAT relief, finding that Solano’s claim was not credible. The

petitioners appealed to the BIA and the BIA affirmed the IJ’s decision on the

merits, but it did not address the IJ’s adverse credibility finding. On appeal to this

Court, the government moved to have the case remanded to the BIA to allow the

BIA the opportunity to address the IJ’s findings, as required by 8 C.F.R.

§ 1003.1(d)(3)(i). We granted that motion and remanded to the BIA.

      On remand, the BIA issued a new decision on November 22, 2006. The BIA

found that the IJ’s adverse credibility determination was not clearly erroneous

because the IJ identified specific reasons for the determination that went to the
                                           5
heart of the petitioners’ claim. In particular, the BIA found that Solano’s written

statement was inconsistent with her testimony in that her written statement

indicated that she had told the members of the Institute’s committee about the

communication she had received from the ELN, but she testified that she told only

the head of the Institute. The BIA thus determined that the record remained

unclear as to the persons who may have informed the ELN about Solano’s

disclosure of the fact that she had received the communication from the ELN.

Secondly, the BIA found a material discrepancy with regard to whether the ELN

still continues to search for her in Colombia. The BIA noted that Solano’s written

application indicated that “mail” and “packets” had been sent to her house and that

strange people had inquired of her porter regarding her whereabouts, but that she

failed to mention those details in her testimony. The BIA concluded that the

petitioners had not meet their burden for establishing asylum, withholding of

removal, or CAT relief, and, thus, dismissed the petitioners’ appeal.

                                   II. Discussion

      The petitioners argue that the BIA erred in upholding the IJ’s adverse

credibility finding because the petitioners provided consistent and substantial

evidence in support of their claims. They assert that the IJ’s adverse credibility

determination was clearly erroneous for three reasons. First, the IJ’s decision was

based upon his personal and biased views regarding Colombian asylum applicants
                                           6
and his speculation concerning the severity of Solano’s husband’s medical

condition and the availability of treatment in the United States. Second, the IJ

failed to consider the other evidence in the record, namely, the letters from the

President of the Institute and the President of the Liberal Party in Bello. Lastly, the

petitioners assert that the IJ failed to follow required procedures for immigration

judges, specifically, the IJ ignored or overlooked evidence in the record and failed

to present specific, cogent reasons for the adverse credibility determination,

thereby depriving the petitioners of due process. The petitioners also contend that

the BIA affirmed the IJ’s decision based upon minor discrepancies between the

written application and Solano’s testimony, without considering the IJ’s error in

ignoring substantial evidence in the record.

      The BIA in this case did not expressly adopt the IJ’s decision. As such, we

will review only the BIA’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001) (noting that we review only the BIA’s decision; but

“[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision

as well”). We review de novo the legal determinations of the BIA. Id. Factual

determinations are reviewed under the substantial evidence test, and we will

“affirm the . . . decision if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401

F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). Therefore, we will reverse a
                                            7
finding of fact “only when the record compels a reversal; the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal . . . .”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). “A

credibility determination, like any fact finding, may not be overturned unless the

record compels it.” Forgue, 401 F.3d at 1287 (quotations omitted).

      As an initial matter, the government argues that we lack jurisdiction to

consider many of the petitioners’ arguments raised on appeal. We review our

subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463

F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to consider a challenge

raised in a petition for review that the petitioner did not exhaust before the BIA.

Id. Here, the petitioners enumerated three grounds for error in their notice of

appeal to the BIA: (1) the IJ incorrectly characterized the nature of Solano’s

written evidence; (2) the IJ attached too much weight to the fact that Solano’s

husband returned to Colombia for medical treatment; and (3) the IJ failed to

account for the fact that the petitioners fled Colombia with little time to gather

corroborative evidence in support of their claim. The petitioners also argued in

their statement in lieu of a brief that the IJ’s credibility finding was based upon

immaterial contradictions between Solano’s testimony and application and that the

IJ’s comment in his oral decision regarding the nature of Solano’s political

involvement was “out of place” and illustrated the IJ’s bias against the petitioners.
                                           8
It is clear, then, that the petitioners’ did not exhaust before the BIA the following

claims, which they now raise here on appeal: (1) the IJ improperly speculated

about the severity of Solano’s husband’s medical condition; (2) the IJ ignored or

failed to consider evidence in the record; and (3) the IJ failed to comply with

procedures applicable to immigration judges. Thus, we lack jurisdiction to

consider those claims, as the petitioners failed to exhaust them before the BIA.

      However, with regard to the petitioners’ argument that the IJ’s decision was

based upon his personal views and bias against Colombian asylum applicants, the

question of whether the petitioners raised that argument before the BIA is not as

clear. As noted above, the petitioners did specify before the BIA that the IJ’s

comments regarding the nature of Solano’s political involvement illustrate bias

against the petitioners. Nonetheless, that argument is not the same as the argument

presented to this Court, namely, that the IJ’s entire decision was wrought with

inappropriate personal opinions, sarcasm, and bias by the IJ. Therefore, to the

extent that the petitioners now expand their argument to include facts and issues

that were not presented to the BIA, we lack jurisdiction to address those

arguments. See 8 C.F.R. § 1003.3(b) (explaining that the statement in a notice of

appeal to the BIA “must specifically identify the findings of fact, the conclusions

of law, or both, that are being challenged”).

      Accordingly, we lack jurisdiction over the majority of the arguments the
                                           9
petitioners raise in their appellate brief. A careful reading of the petitioners’ brief

indicates that they also vaguely raise the issue of whether the BIA erred in

affirming the IJ’s credibility determination where the determination was based

upon minor discrepancies between Solano’s written application and testimony.

The petitioners also raised that issue before the BIA and, as such, we retain

jurisdiction to consider the merits of that claim.

      The testimony of an applicant, if found credible, is alone sufficient to

establish eligibility for asylum. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201

(11th Cir. 2005). “Indications of reliable testimony include consistency on direct

examination, consistency with the written application, and the absence of

embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).

“[T]he [BIA] must offer specific, cogent reasons for an adverse credibility

finding.” Forgue, 401 F.3d at 1287. “[A]n adverse credibility determination alone

may be sufficient to support the denial of an asylum application.” Id. However, an

adverse credibility determination does not alleviate the BIA’s duty to consider

other evidence produced by the asylum applicant. Id.

      Here, the BIA found that the IJ’s ultimate credibility finding was supported

by the following specific reasons: that material discrepancies existed between

Solano’s written application and her testimony regarding (1) what persons she told

about the pamphlets and letter she received from the ELN, and (2) whether she had
                                           10
received mail, packets, and inquiries from strange persons at her home after she

and her husband had fled to the United States. With regard to the first reason, that

Solano’s written application indicated that she had told the Institute’s “committee”

about her communication from the ELN, but that she testified that she had told

only the head of the Institute, the evidence in the record establishes that

discrepancy, as demonstrated by a review of Solano’s written statement and her

testimony.

       It is noteworthy, however, that this reason is minor and does not appear to

go to the heart of the petitioners’ claim that Solano suffered past persecution by the

ELN. Moreover, the government makes the conclusory statement that this

discrepancy was material, but it does not explain that nature of its materiality to the

petitioners’ claim of persecution. Other circuits have held that minor

inconsistencies will not support an adverse credibility finding, but inconsistencies

that go “to the heart of [the] asylum claim” are sufficient to support such a finding.

See e.g., Chebchoub v. I.N.S., 257 F.3d 1038, 1043 (9th Cir. 2001); Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We have never adopted the “heart of

the claim” test.2 However, we need not resolve this issue here because the BIA’s


       2
         Congress recently amended the law regarding credibility determinations, but those
changes only apply to applications for asylum filed after May 11, 2005. See Section 101(h)(2)
of the REAL ID Act. Under the new law, the credibility determination is based on the totality of
the circumstances, which may include inaccuracies or falsehoods that do not go to the “heart of
the applicant’s claim.” Id. at § 101(a)(3)(B)(iii). Because the petitioners filed their application
                                                  11
second reason supporting its adverse credibility finding relates to the petitioners’

fear of persecution, and, thus, goes to the heart of their asylum claim.

       As to the BIA’s second reason in support of the adverse credibility finding,

that Solano did not testify that she received “mail” and “packets” at her house or

that “strange people” had inquired of her porter regarding her whereabouts, that

discrepancy is material to the question of whether the ELN is still searching for

Solano, such that she had a well-founded fear of future persecution if she returned

to Colombia. Furthermore, the record does indeed demonstrate that such a

discrepancy existed between her written application and her testimony. However,

as the petitioners argue, this reason is undermined by the fact that neither Solano’s

counsel nor the IJ ever asked Solano generally what had occurred, if anything,

since she left Colombia; rather, the IJ asked only whether her husband had

experienced any harm or threat during his eight-month return to Colombia. Yet, at

one point during the hearing, the IJ asked Solano what she thought would happen

to her if she returned to Colombia. Solano indicated that she would be killed and

that she had proof because a co-worker at the Institute had also worked for the

Liberal Party, had been threatened, and had sought asylum in Spain. Solano did

not mention that her “proof” included that she had received mail and packets at her

house or that strange people had inquired of her whereabouts. “[Solano] - not the

in 2001, their application is unaffected by this change.
                                                  12
IJ - bears the burden of proving eligibility for asylum.” See Ruiz, 440 F.3d

at 1256.

                                   III. Conclusion

      Based upon the foregoing, the BIA presented two specific, cogent reasons in

support of its adverse credibility finding that were supported by substantial

evidence in the record. Moreover, at least one of the reasons was material to the

petitioners’ claim. Accordingly, we dismiss the petition in part, as it seeks review

of issues over which we lack jurisdiction, and we deny the petition in part, to the

extent that it challenges the BIA’s reasons in support of its adverse credibility

finding.

      PETITION DISMISSED IN PART, DENIED IN PART.




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