                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     October 31, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-60148
                        _______________________


                           JUAN CARLOS BARAJAS

                                                               Petitioner,

                                  versus

             ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL


                                                               Respondent.


               Petition for Review of an Order of the
                     Board of Immigration Appeals
                          BIA No. A96-278-926


Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

EDITH H. JONES, Chief Judge:*

           Juan Carlos Barajas, a Colombian citizen, was ordered

removed from the United States after an immigration judge (“IJ”)

denied his application for asylum and withholding of removal

because of an adverse credibility determination.             The Board of

Immigration Appeals affirmed in a per curiam order.         Since the IJ’s

credibility determination is supported by substantial evidence, we

DENY the petition for review.




     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                             I.    BACKGROUND

           Barajas is a native and citizen of Colombia.            He was

fifteen years old at the time of the proceedings under review by

this court.      In July 2002, he entered this country lawfully as a

non-immigrant, but became removable for overstaying his visa.            On

March 26, 2003, the Immigration and Naturalization Service charged

Barajas   with    removability    under   Section   237(a)(1)(B)   of   the

Immigration and Nationality Act.          Barajas conceded removability,

but filed an application for asylum and withholding of removal

based on alleged persecution.

           In his application, Barajas claimed he was in danger of

death or harm at the hands of the National Liberation Army (“ELN”),

a Colombian guerilla group, because of his sister’s and mother’s

activities at the Instituto Colombo Americano, which is viewed by

the ELN as an example of unwanted American involvement in Colombia.

As a result of ELN threats, Barajas’s sister, a teacher at the

institute, was granted asylum in 2001.

           Barajas reported that while they were still living in

Colombia, his mother had received threatening phone calls from the

ELN.   Additionally, he stated that in 2002, while he was waiting

for a school bus, a man approached him and said they had access to

him.   In fear of being kidnapped, he hid for the rest of the day

until his mother found him in a storage area.          He then testified

that shortly after the bus incident, he and his mother were leaving



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the dentist’s office when a man approached them, began beating him,

and stole his mother’s purse.      Later that night they received a

phone call from the ELN telling them that the incident was only a

warning.   His mother and sister also testified about the incident,

but their testimony differed from Barajas’s.       As a result of the

inconsistencies, the IJ determined that the testimony appeared

rehearsed and was not credible, and he denied the application for

asylum on August 4, 2003.        The Board of Immigration Appeals

affirmed in a per curiam order on February 3, 2005.       Barajas now

petitions for review.

                           II.   DISCUSSION

           The Attorney General may grant asylum to aliens who

qualify as refugees.    8 U.S.C. § 1158(a).   A refugee is someone who

is unable or unwilling to return to his or her 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.”          Id. § 1101(a)(42)(A).     To be

eligible for withholding of deportation, an alien must demonstrate

a “clear probability” of persecution upon return to his home

country.   Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).

           This court reviews the denial of asylum under Section 242

of the Immigration and Nationality Act, 8 U.S.C. § 1252.        We will

uphold the factual finding that an alien is not eligible for asylum

if the finding is supported by substantial evidence.           Zhang v.



                                   3
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).                 Reversal is proper

only if a different conclusion is compelled by the evidence.                       Id.

If an adverse determination is supported by specific and cogent

reasons derived from the record, it will not be upset.                     Id.

            The petitioner has the burden to “show that the evidence

he presented was so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution.”                    INS v. Elias-

Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 817 (1992).                        The

factfinder’s determinations as to a witness’s credibility “are

given great deference” because “[t]he factfinder has the duty to

judge the    credibility   of    the   witnesses     and      to    make    findings

accordingly.”   Efe v. Ashcroft, 293 F.3d 905, 905 (5th Cir. 2002).

            Barajas   argues    that   he   met   his   burden       of    proof    to

establish    eligibility   for    asylum,     contending           that    the    IJ’s

credibility determinations were not reasonable in light of the

evidence.    He argues that a different result was compelled.

            The IJ determined that the testimony of Barajas and his

mother   regarding    threats    of    persecution      to    Barajas       was    not

credible.     The IJ noted that the application for asylum was

somewhat vague, and when the petitioner was examined on the details

of the incident, irreconcilable discrepancies began to appear

between his and his mother’s testimony. For example, the testimony

differed on the issues of where the incident occurred and whether

they took a taxi home afterwards or before.                  The witnesses also

could not agree on how they got to the hospital after the incident.

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The judge determined that the testimony appeared rehearsed, given

the vague, general description and lack of cogency on the details.

The    IJ   gave   both    witnesses   an    opportunity   to    clear    up   the

discrepancies, but the only explanation given was that Barajas was

confused and depressed about the incident, which had occurred less

than a year earlier, and thus could not remember.

             Barajas contends that, as other circuits have held, minor

inconsistencies that do not go to the heart of the matter should

not render a petitioner ineligible for asylum.             See    Sylla v. INS,

388 F.3d 924, 926 (6th Cir. 2004); Georgis v. Ashcroft, 328 F.3d

962, 967-70 (7th Cir. 2003); Wang v. Ashcroft, 341 F.3d 1015, 1021-

22 (9th Cir. 2003); see also Caushi v. Atty. Gen. of U.S., 436 F.3d

220, 226 n.4 (3d Cir. 2006).       This court has not yet ruled directly

on whether minor inconsistencies in asylum testimony can justify

the denial of relief, but we decline to do so here.              As Barajas and

his mother could not agree on even the basic facts of the critical

incident, the IJ’s finding would be upheld under either our current

standard or the strengthened standard used by some other circuits.

The IJ’s decision was thus based on “specific and cogent reasons

derived from the record,” and must be upheld.              Zhang, 432 F.3d at

344.

                                  CONCLUSION

             For   these    reasons,   the    petition   for     review   of   the

decision of the BIA is DENIED.



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