                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                              OCTOBER 5, 2007
                            No. 07-10982                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A76-533-925

VIVIAN HERNANDEZ-CABALLERO,


                                                             Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.


                      ________________________

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

                             (October 5, 2007)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Vivian Hernandez-Caballero, a native and citizen of Cuba, petitions for

review of an order by the Board of Immigration Appeals (“BIA”) dismissing her

appeal of the immigration judge’s (“IJ”) order denying her an adjustment of status.

After review, we deny the petition.

                               I. BACKGROUND

      In August 1997, the Immigration and Naturalization Service served

Hernandez-Caballero with a Notice to Appear (“NTA”), alleging that she was an

arriving alien who did not possess or present a valid entry document, in violation

of 8 U.S.C. § 1227(a)(1)(A). In an interview with an immigration official,

Hernandez-Caballero stated that she was an active member of the Youth

Communist Party in Cuba and had been selected to join the organization while

serving in the Cuban military in Angola.

      In February 1998, after several continuances for her to hire an attorney,

Hernandez-Caballero appeared pro se before an IJ, conceded removability, and was

ordered removed.

      In November 1998, Hernandez-Caballero filed an I-485 application to adjust

status under the Cuban Refugee Adjustment Act (“CRAA”), Pub. L. No. 89-732,

80 Stat. 1161 (1966), stating she was a citizen of Cuba who had been physically

present in the United States for at least one year. In November 2003, Hernandez-



                                           2
Caballero filed an application to adjust status under the CRAA, which the IJ found

was a continuation of her 1998 application.

      In her 2003 adjustment application, Hernandez-Caballero responded

affirmatively to a question asking if she had “ever been a member of, or in any way

affiliated with, the Communist Party . . . .” In an addendum to the 2003

application, Hernandez-Caballero explained that in Cuba she enrolled as a member

of the Communist Youth Union (“UJC”) and was an active member from 1985 to

1991 in order to “keep [her] aspirations alive” and to “attend the University of

Havana.” Hernandez-Caballero clarified that every member of the Communist

Party was selected or recommended from the UJC. However, she was never

recommended and thus never became a member of the Communist Party. In 1991,

she got married, moved from Cuba to Chile, and abandoned the UJC.

      In July 2004, Hernandez-Caballero, through counsel, filed a motion with the

Department of Homeland Security to reopen her removal proceedings to request

relief from removal and to adjust her status to a permanent resident. An IJ granted

the motion to reopen, which effectively allowed her request for adjustment of

status to be considered.

      In February 2005, Hernandez-Caballero appeared before an IJ with counsel,

admitted the factual allegations contained in the NTA, and stated that she was

seeking an adjustment of status.
                                          3
       In June 2005, Hernandez-Caballero appeared again before an IJ for an

adjustment hearing. Hernandez-Caballero admitted that she served as a Sergeant in

the Cuban military from 1985 to 1991 and was stationed in Angola for ten months

in 1989 and 1990. She also admitted that military service for women in Cuba was

voluntary. Hernandez-Caballero stated that she joined the Cuban military because

she “didn’t want to continue to live in the house with [her] mother and [her]

stepfather. . . .”

       Hernandez-Caballero testified that she was a member of the UJC from 1987

to 1991, but admitted that she told an immigration official during an interview in

August 1997 that she had been selected as a member of the UJC while serving with

the Cuban military in Angola. She professed, however, that the UJC was not the

same as the Communist Party.

       Hernandez-Caballero further testified that she married a Cuban man, then

moved from Cuba to Chile and lived in Chile from 1992 to 1997. She admitted

that her Cuban husband was a member of the Cuban Communist Party and worked

as a Vice Consul for the Cuban Consulate in Chile. While living in Chile, she

carried a diplomatic passport and worked at the Cuban Consulate as a receptionist.

Although she admitted that she had worked for the Cuban Consulate and that her

husband was a member of the Communist Party, she maintained that she was never



                                          4
a member of the Communist Party. Hernandez-Caballero, however, did not

dispute that the Cuban Communist Party controls the government of Cuba.

      When questioned regarding when her membership in the UJC ended,

Hernandez-Caballero first testified that she left the UJC in 1991 when she moved

to Chile. She acknowledged, however, that she never signed a paper or otherwise

officially left the organization. She later testified that her membership in the UJC

continued until 1993 when she left her job with the Cuban Consulate in Chile.

She maintained that she had no ties with the Cuban government after she left the

Cuban Consulate in Chile in 1993.

      The IJ denied Hernandez-Caballero’s application for adjustment of status

and ordered her removed to Cuba, or, in the alternative, Chile. In an oral decision,

the IJ found that Hernandez-Caballero’s testimony regarding her period of

membership in the UJC was “vague, internally inconsistent” and “not credible.”

The IJ noted that she first indicated that she became a member of the UJC in 1987,

then later testified that she was invited to join the UJC while she was serving with

the military in Angola, which, under her previous testimony, was in 1989 and

1990. In addition, Hernandez-Caballero first testified that she was a member of the

UJC until 1991, but later admitted that she still was a member of the UJC while

working at the Cuban Consulate in Chile in 1993.



                                          5
      Accordingly, the IJ determined that Hernandez-Caballero failed to establish

by credible testimony that her membership, affiliation, or connection to the

Communist Party had ended five years prior to applying for admission into the

United States. The IJ found that Hernandez-Caballero failed to show that she had

left the UJC while in Chile and was no longer collaborating with the Cuban

government. The IJ also summarized that Hernandez-Caballero’s testimony was

“not straightforward, disingenuous, and nonresponsive.”

      In addition, the IJ denied Hernandez-Caballero adjustment of status as a

matter of discretion based on her lack of credibility and her voluntary cooperation

with the Cuban government.

      Hernandez-Caballero filed a timely appeal with the BIA, which the BIA

dismissed. The BIA held that Hernandez-Caballero was subject to a rebuttable

presumption of inadmissibility under the CRAA based on her membership in the

UJC, which was a branch of the Cuban Communist Party, and her affirmative

answer in her adjustment of status application to the question of whether she ever

was a member of the Communist Party.

      The BIA agreed with the IJ’s determination that Hernandez-Caballero had

not rebutted the presumption of inadmissibility. First, the BIA held that

Hernandez-Caballero voluntarily joined the Cuban military, which required

membership in the Communist Party. Second, the BIA held that Hernandez-
                                          6
Caballero did not present any evidence to show that her membership in the

Communist Party was not meaningful and further concluded that her membership

was, in fact, meaningful because it helped her obtain employment in the Cuban

Consulate in Chile. Finally, because of Hernandez-Caballero’s incredible

testimony with regard to the dates of her membership in the UJC, the BIA

concluded that she was unable to establish that her Communist Party membership

had terminated at least five years before the date of her application for adjustment

of status. Because the BIA agreed with the IJ’s decision that Hernandez-Caballero

was inadmissible, it declined to address the IJ’s discretionary denial of adjustment

of status.

       Hernandez-Caballero timely petitioned for review.

                                 II. DISCUSSION

       On appeal, Hernandez-Caballero argues that the BIA and IJ erred in finding

that (1) the UJC (Communist Youth Union) was equivalent to the Cuban

Communist Party, (2) her enlistment in the Cuban military was voluntary even

though she enlisted to escape her family situation at home, and (3) she continued to

be a member of the Communist Party when she returned to Cuba after her service

with the Cuban military in Angola.

       When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
                                          7
F.3d 1262, 1284 (11th Cir. 2001). We review de novo the legal determinations of

the BIA, id., and review factual findings of the BIA under the substantial evidence

test, Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). “Under

this highly deferential standard of review, the [BIA’s] decision can be reversed

only if the evidence ‘compels’ a reasonable fact finder to find otherwise.” Id.

(citations omitted).

      We also review credibility determinations under the substantial evidence

test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). The IJ

“must offer specific, cogent reasons for an adverse credibility finding.” Id. at

1287. “Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ's credibility decision was not supported by ‘specific,

cogent reasons’ or was not based on substantial evidence.” Id.

      The CRAA provides that:

      the status of any alien who is a native or citizen of Cuba and who has
      been inspected and admitted or paroled into the United States
      subsequent to January 1, 1959 and has been physically present in the
      United States for at least one year, may be adjusted by the Attorney
      General, in his discretion and under such regulations as he may
      prescribe, to that of an alien lawfully admitted for permanent
      residence if the alien makes an application for such adjustment, and
      the alien is eligible to receive an immigrant visa and is admissible to
      the United States for permanent residence. . . .

CRAA, Pub. L. No. 89-732, 80 Stat. 1161, § 1 (as amended, see 8 U.S.C. § 1255,

historical and statutory notes) (quoted in Gonzalez v. McNary, 980 F.2d 1418,
                                           8
1420 n.1 (11th Cir. 1993)). However, any alien “who is or has been a member of

or affiliated with” the Communist Party or any “subdivision or affiliate thereof” is

inadmissible to the United States. 8 U.S.C. § 1182(a)(3)(D)(i). There are specific

exceptions to 8 U.S.C. § 1182(a)(3)(D)(i) for aliens whose membership in the

Communist Party (1) was involuntary, 8 U.S.C. § 1182(a)(3)(D)(ii), or (2)

terminated at least five years1 prior to the date on which she applied for admission

or adjustment of status, 8 U.S.C. § 1182(a)(3)(D)(iii). The BIA has further

established an exception to 8 U.S.C. § 1182(a)(3)(D)(i) where the alien shows that

her membership in the Communist Party was not “meaningful.” See Matter of

Rusin, 20 I&N Dec. 128, 130-32 (BIA 1989).

       As an initial matter, Hernandez-Caballero dedicates the vast majority of her

brief to arguing that the IJ erred in its discretionary decision to deny her adjustment

of status. However, the BIA declined to address the IJ’s discretionary decision to

deny Hernandez-Caballero adjustment of status because it agreed with the IJ’s

determination that she was inadmissible under 8 U.S.C. § 1182(a)(3)(D)(i).



       1
         This exception states that 8 U.S.C. § 1182(a)(3)(D)(i) shall not apply to an alien who
establishes that her membership or affiliation with the Communist Party terminated at least:
        (a) 2 years before the date of such application, or
        (b) 5 years before the date of such application, in the case of an alien whose
        membership or affiliation was with the party controlling the government of a foreign
        state that is a totalitarian dictatorship as of such date . . .
8 U.S.C. § 1182(a)(3)(D)(iii)(I)(a), (b). Because Hernandez-Caballero does not dispute that the
Cuban Communist Party controls the government of Cuba, we will apply subsection (b) here.
                                                     9
Because we are reviewing only the BIA’s decision here, and the BIA declined to

address the IJ’s discretionary decision, we will not review the discretionary relief

issue.2

          With respect to the decision that Hernandez-Caballero was inadmissible

under 8 U.S.C. § 1182(a)(3)(D)(i), we conclude that the BIA’s decision is

supported by substantial evidence. First, we need not address here whether the

UJC (Communist Youth Union) is a branch of the Communist Party because the

record evidence that Hernandez-Caballero was a member of the UJC, enlisted in

the Cuban military and worked at the Cuban Consulate in Chile provides

substantial evidence for the BIA’s finding that Hernandez-Caballero was at least

“affiliated with” the Cuban Communist Party or a “subdivision or affiliate” of the

Cuban Communist Party. Indeed, Hernandez-Caballero admitted that every

member of the Communist Party is recommended or selected from the UJC

(Communist Youth Union), which further demonstrates the affiliation. Thus, the

record does not compel reversal of the BIA’s finding that Hernandez-Caballero




          2
         To the extent that Hernandez-Caballero argues that the IJ erred in failing to consider the
application of 8 U.S.C. § 1182(a)(3)(D)(iv), which allows the Attorney General to waive the
application of 8 U.S.C. § 1182(a)(3)(D)(i) in the interest of family unity where an alien has a close
family member who is a citizen or permanent resident of the United States, we decline to address
this argument because the IJ’s discretionary decision is not before us on review. In any event, we
would lack jurisdiction to review this discretionary decision. See 8 U.S.C. § 1252(a)(2)(B).
                                                 10
was inadmissible because she was “a member of or affiliated with” the Cuban

Communist Party under 8 U.S.C. § 1182(a)(3)(D)(i).

      Second, as to the BIA’s determination that Hernandez-Caballero’s failed to

show that her relationship with the Cuban Communist Party was “involuntary”

under 8 U.S.C. § 1182(a)(3)(D)(ii), Hernandez-Caballero’s testimony that she

enlisted in the Cuban military because she “didn’t want to continue to live in the

house with [her] mother and [her] stepfather” is wholly insufficient to compel the

conclusion that her enlistment in the military was involuntary. Furthermore, she

does not argue that her other affiliations with the Communist Party – her

membership in the UJC and her employment at the Cuban Consulate in Chile –

were, in any way, involuntary. Thus, the BIA’s conclusion that Hernandez-

Caballero failed to establish under 8 U.S.C. § 1182(a)(3)(D)(ii) that her

membership or affiliation with the Communist Party was involuntary is supported

by substantial evidence.

      Finally, with respect to the BIA’s finding that Hernandez-Caballero failed to

show that her membership in or affiliation with the Communist Party ended five

years before she filed her adjustment of status application under 8 U.S.C.

§ 1182(a)(3)(D)(iii), the BIA’s and IJ’s findings that Hernandez-Caballero’s

testimony regarding her membership in the UJC was not credible is supported by



                                         11
substantial evidence.3 Hernandez-Caballero provided inconsistent information

regarding when she joined the UJC. She stated in her 2003 adjustment of status

application that she joined the UJC in 1985. She then testified before the IJ that

she joined the UJC in 1987, but later admitted that she told an immigration official

during an interview in 1997 that she had been invited to join the UJC during her

service with the Cuban military in Angola, which she had testified was from 1989

to 1990.

       More importantly, Hernandez-Caballero provided inconsistent information

regarding when, if ever, she left the UJC. Hernandez-Caballero initially testified

that she was a member of the UJC until 1991. She later testified that her

membership in the UJC continued until 1993 when she left her job with the Cuban

Consulate. Thus, based on Hernandez-Caballero’s inconsistent testimony

regarding the key issue of the dates of her membership in the UJC, we hold that the

IJ’s adverse credibility finding, which was affirmed by the BIA, is supported by

substantial evidence. Indeed, the IJ stated the court was not convinced that

Hernandez-Caballero had left the UJC organization. Furthermore, the BIA’s

finding that Hernandez-Caballero failed to show under 8 U.S.C.


       3
        Hernandez-Caballero filed an application for adjustment of status in 1998, and then filed
another application in 2003. The IJ found that the 2003 application was the same continuing
application as the 1998 application. Thus, 1998 was the relevant date for purposes of the five-year
exception in 8 U.S.C. § 1182(a)(3)(D)(iii). Hernandez-Caballero has not challenged this finding in
her present appeal.
                                                12
§ 1182(a)(3)(D)(iii) that her membership in or affiliation with the Cuban

Communist Party, or any subdivision or affiliate thereof, ended five years before

the date she filed her adjustment of status application is supported by substantial

evidence.4

       PETITION DENIED.




       4
         Hernandez-Caballero also cites cases from this Court discussing how an alien may show a
due process violation in immigration proceedings. However, she fails to explain how there was a
due process violation in her case. Accordingly, we hold that any due process claim is waived
because Hernandez-Caballero failed to develop it in her brief. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that an issue listed in the statement of
facts but not elaborated upon in the initial or reply briefs was abandoned).
                                                  13
