                                                                              FILED
                             NOT FOR PUBLICATION                              MAY 17 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


HERMES G. VILLAR GUZMAN;                         No. 05-77318
MARCELINA VILLAR; JESSY P.
VILLAR BERROCAL; MARIA DEL                       Agency Nos. A070-923-176
PILAR VILLAR BERROCAL,                                       A070-923-177
                                                             A070-923-178
              Petitioners,                                   A070-923-179

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 6, 2010
                              Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and BLOCK, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      Hermes G. Villar Guzman, Marcelina Villar, Jessy P. Villar Berrocal and

Maria Del Pilar Villar Berrocal petition for review of a decision of the Board of

Immigration Appeals (“BIA”) denying their applications for asylum, withholding

of removal, and relief under the United Nations Convention Against Torture

(“CAT”). We assume familiarity with the facts, prior proceedings and issues

presented. Because the BIA adopted the reasoning of the immigration judge (“IJ”),

we review the latter’s decision. See Knezevic v. Ashcroft, 367 F.3d 1206, 1210

(9th Cir. 2004).

                                          I

      The IJ’s finding that Hermes was not credible was supported by substantial

evidence. Hermes’s testimony before the IJ that he left the military in 1981 was

inconsistent with his statements in his written asylum application and asylum

interview that he served until 1991.

      This inconsistency goes to the heart of petitioners’ asylum claim because

“[p]ersecution occurring because a person is a current member of a police force or

the military . . . is not on account of one of the grounds enumerated in the

[Immigration and Naturalization] Act.” Cruz-Navarro v. INS, 232 F.3d 1024, 1029

(9th Cir. 2000) (internal quotation marks and emphasis omitted). If Hermes was




                                          2
still in the military when the threats from Sendero Luminoso allegedly

commenced, he cannot establish that he was targeted as a former soldier.

      The IJ adequately addressed Hermes’s proffered explanations for the

inconsistency, reasoning that nervousness and confusion at the asylum interview

did not justify Hermes’s failure to correct the ten-year discrepancy before the

asylum officer. In light of Hermes’s admitted understanding of his obligation to

tell the asylum officer the truth, the record does not compel a contrary conclusion.

                                          II

      We find no merit in petitioners’ contention that the IJ should have “probed

the record” for corroboration of Hermes’s testimony by questioning Marcelina as

to Hermes’s discharge date. Petitioners’ counsel presented Marcelina as a witness,

and the IJ in no way interfered with his ability to elicit her testimony on any

subject. In any event, Marcelina adopted Hermes’s testimony in its entirety. As a

result, her testimony is also inconsistent with Hermes’s prior statements and relies

solely on his explanations for the inconsistency. In these circumstances, the IJ was

not required to separately assess Marcelina’s credibility.

                                          III

      There is no evidence that the IJ was biased. His adverse credibility

determination was, as explained above, based entirely on legitimate considerations.


                                          3
We are also satisfied that the IJ considered the entire record, including petitioners’

background evidence and Hermes’s pre-hearing declaration. Thus, the IJ did not

violate petitioners’ due-process rights to “a full and fair hearing of [their] claims

and a reasonable opportunity to prevent evidence on [their] behalf.” Colmenar v.

INS, 210 F.3d 967, 971 (9th Cir. 2000).

                                          IV

      Because the IJ’s adverse credibility determination was supported by

substantial evidence and comported with due process, petitioners cannot satisfy

their burden of demonstrating eligibility for asylum, withholding of removal, or

relief under CAT.1 Accordingly, their petition for review is

      DENIED.




      1
        Because we uphold the IJ’s adverse credibility determination, we do not
reach his alternative conclusions that, even accepting Hermes’s testimony as true,
petitioners failed to establish eligibility for the relief they sought.

                                           4
