                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 15, 2008
                                                  THOMAS K. KAHN
                            No. 07-14431
                                                       CLERK
                        Non-Argument Calendar
                      ________________________

                          BIA No. A79-492-785

DANIEL HERNANDEZ,
MARTA EDILSA MIRANDA,
DANIEL ANDRES HERNANDEZ,

                                                      Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                      ________________________

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

                              (May 15, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Daniel Hernandez, his wife Marta Edilsa Miranda, and his son Daniel

Andres Hernandez (“petitioners”), citizens and natives of Colombia, petition for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing their

appeal from the Immigration Judge’s (“IJ”) order denying their joint application

for asylum, withholding of removal, and relief under the United Nations

Convention Against Torture (“CAT”). After review, we dismiss in part and deny

in part the petition.1

       Petitioners applied for asylum, withholding of removal and CAT relief,

claiming that Daniel Hernandez was persecuted by the Revolutionary Armed

Forces of Colombia (“FARC”) based on his political opinion. In denying

petitioners’ application, the IJ made an adverse credibility determination as to

Daniel Hernandez, the sole witness at the asylum hearing, which the BIA adopted.

On appeal, petitioners challenge this credibility finding.

       Because the BIA’s order adopted the IJ’s credibility finding, we review the

decisions of both the BIA and the IJ as to the credibility issue. See Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “The IJ’s factual determinations,

including credibility determinations, are reviewed under a substantial evidence


       1
         We lack jurisdiction to consider the petitioners’ argument that the IJ erred by denying
their request for voluntary departure because they failed to exhaust this issue in their appeal to
the BIA. See 8 U.S.C. § 1252(d)(1); Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006).
Thus, to the extent petitioners seek review of the denial of their request for voluntary departure,
their petition is dismissed.
                                                  2
standard, which provides that the IJ’s decision can be reversed only if the evidence

compels a reasonable fact finder to find otherwise.” Chen v. U.S. Att’y Gen., 463

F.3d 1228, 1230-31 (11th Cir. 2006) (quotation marks omitted).

      “The asylum applicant must establish eligibility for asylum by offering

credible, direct, and specific evidence in the record.” Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005) (quotation marks omitted). “[A]n adverse

credibility determination alone may be sufficient to support the denial of an asylum

application.” Id. “[T]he IJ must offer specific, cogent reasons for an adverse

credibility finding.” Id. “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.

(quotation marks omitted).

      Here, the IJ made an explicit adverse credibility determination as to

Hernandez and gave specific, cogent reasons for his credibility finding. More

particularly, the IJ stated that Hernandez’s hearing testimony was dramatically

different from his application and asylum interview. The IJ identified a number of

material inconsistencies, including Hernandez’s failure to identify the FARC as his

persecutor in either his application or his asylum interview and Hernandez’s failure

to mention in his application or his asylum interview that he was a political activist

with the Conservative Party and a community leader, that his eldest son was
                                           3
poisoned by the FARC, and that the FARC called Hernandez a few days after his

eldest son’s death and informed Hernandez that he would also be killed if he did

not discontinue his political activity. In addition, during the hearing, the

government pointed out that Hernandez failed to mention in either his application

or his asylum interview that, as a result of the FARC’s campaign of threats and

harassment, he was forced to sell his farm in 1994 or that he was confronted by the

FARC in July 1999 after he moved his factory to a new location and told to

collaborate with them. These material inconsistencies are supported by substantial

evidence.

       Petitioners argue that these inconsistencies do not “go to the heart” of their

claim. Although we have not addressed the issue in a published opinion, some

circuits have concluded that inconsistencies used to discredit an asylum-seeker’s

testimony must go to the heart of the asylum claim. See Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002); Chebchoub v. I.N.S., 257 F.3d 1038, 1043 (9th Cir.

2001).2 We need not resolve the issue, however, because the inconsistencies

identified at the hearing directly relate to the petitioners’ claims of political


       2
          We note that the REAL ID Act of 2005 amended the Immigration and Nationality Act to
permit adverse credibility determinations based on inconsistencies regardless of whether those
inconsistencies go to the heart of the asylum applicant’s claim. See Pub. L. No. 109-13, §
101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(i)(B)(iii)). However,
because the petitioners’ joint application was filed prior to the enactment of the REAL ID Act on
May 11, 2005, this amendment does not apply to petitioners’ claim. See id. § 101(h)(2), 119
Stat. at 305.
                                                  4
persecution by the FARC and thus are sufficient under either standard.

Specifically, the inconsistencies call into doubt Hernandez’s membership in the

Conservative Party, his identification of the FARC as his alleged persecutors,

whether and why the FARC was allegedly persecuting him and the severity of that

alleged persecution.

       In sum, substantial evidence supports the IJ’s and the BIA’s conclusion that

Hernandez lacked credibility. Furthermore, the documentary evidence in the

record does not compel a conclusion that the petitioners are entitled to asylum.

Because the petitioners did not meet the burden of proof with respect to their

asylum claim, they also cannot meet the higher burden of proof required for

withholding of removal or CAT relief. See Forgue, 401 F.3d at 1288 n.4.3

       PETITION DISMISSED IN PART and DENIED IN PART.




       3
         We do not address the BIA’s alternative finding that, even if Hernandez was credible,
the petitioners failed to establish either past persecution or a well-founded fear of future
persecution.
                                                    5
