FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13260

Non-Argument Calendar

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Agency Nos. A099-555-193,

A099-555-194

ADOLFO JOSE FERNANDEZ GUTIERREZ,

MARIANA CAROLINA MOLERO NEGRETTE,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 9, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Adolfo Jose Fernandez Gutierrez, the lead petitioner, and his wife, Mariana
Carolina Molero Negrette, a derivative beneficiary (collectively “petitioners”), are

natives and citizens of Venezuela. They petition for review, through counsel, of

the Board of Immigration Appeals’s (“BIA”) final order affirming the immigration

judge’s (“IJ”) order finding them removable and denying their application for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”), and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). INA §§

208(a), 241(b)(3), 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. § 208.16(c). On

appeal, the petitioners argue that substantial evidence does not support the IJ’s

adverse credibility determination.

In their asylum application, the petitioners stated that they sought asylum

and withholding of removal based on political opinion and membership in a

particular social group. The petitioners alleged that Fernandez Gutierrez was a

political activist in opposition to President Hugo Chavez of Venezuela and, as a

result, was subjected to humiliation, discrimination, torture, and attempts on his

life. Fernandez Gutierrez, a Venezuelan lawyer, had been a member of a political

party called “First Justice” for approximately four years at the time of the

application, and he provided the party with legal advice regarding electoral rights

and other party activities. The petitioners alleged and testified to several incidents

that occurred in Venezuela that gave rise to their petition for asylum, withholding

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of removal, and CAT relief. We find that the denial of asylum, withholding of

removal, and CAT relief was based on substantial evidence, and therefore, we deny

the petition.

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

F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s

reasoning, we review the IJ’s decision as well. Id. Here, the BIA followed the IJ’s

reasoning in support of the adverse credibility determination and ultimate denial of

relief. Accordingly, we review the decisions of the BIA and the IJ. See id.

We review factual findings and credibility determinations under the

substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005) (citation omitted). Under the substantial evidence test, we must affirm

the IJ and BIA’s decisions if they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at

1284 (quotation and citation omitted). “To reverse a factual finding . . .[, we] must

find not only that the evidence supports a contrary conclusion, but that it compels

one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001)

(citation omitted). The fact that evidence in the record may also support a

conclusion contrary to the administrative findings is not enough to justify a

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

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(citation omitted).

To establish eligibility for asylum, an alien must establish, with specific and

credible evidence, (1) past persecution on account of a statutorily listed factor, or

(2) a well-founded fear that the statutorily listed factor will cause future

persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An alien may

qualify for withholding of removal by showing “it is more likely than not that [the

petitioner’s] life or freedom would be threatened on account of a statutorily

protected factor if returned to [the country of removal].” Silva v. U.S. Att’y Gen.,

448 F.3d 1229, 1243 (11th Cir. 2006) (citation omitted). To qualify for CAT

relief, the applicant carries the burden of proof to establish “that it is more likely

than not that he or she would be tortured if removed to the proposed country of

removal.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239 (11th Cir.

2007) (quoting 8 C.F.R. § 208.16(c)(2)).

Like any finding of fact, a credibility determination “may not be overturned

unless the record compels it.” Forgue, 401 F.3d at 1287 (citation and quotation

omitted). “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)

(per curiam). If the IJ and the BIA explicitly determine that the alien is not

credible, they must give specific, cogent reasons for the adverse credibility

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determination. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (per

curiam) (citation omitted). “The burden then shifts to the 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 and citation omitted). The IJ and

the BIA may deny asylum based solely on an adverse credibility determination,

especially when the alien does not produce corroborating evidence. Id. However,

if an applicant produces evidence other than his testimony, “it is not sufficient for

the IJ to rely solely on an adverse credibility determination in those instances.”

Forgue, 401 F.3d at 1287. “The weaker an applicant’s testimony, however, the

greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005) (citation omitted).

Under 8 U.S.C. § 1158(b)(1)(B)(iii), as amended by the REAL ID Act of

2005, the IJ may find an alien not credible based on the “totality of the

circumstances” and may deny a claim based on inconsistencies, inaccuracies, and

falsehoods contained in the evidence, without regard to whether they go to the

“heart” of the claim. The REAL ID Act states that it “shall apply to applications

for asylum, withholding, or other relief from removal made on or after” the date of

its enactment, May 11, 2005. REAL ID Act, Pub. L. No. 109-13, § 101(h)(2), 119

Stat. 305 (2005) (codified as amended by 8 U.S.C. § 1158(b)(1)(B)(iii)).

Therefore, the REAL ID Act applies in this instance because the petitioners filed

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their asylum application in February 2006.

Here, the IJ made an explicit adverse credibility determination and offered

specific, cogent reasons for such determination. The IJ found and discussed in

detail five specific instances of inconsistencies between Fernandez Gutierrez’s

testimony, the asylum application, and Negrette’s testimony. The inconsistencies

that the IJ found were derived from several different events, which include: (1)

whether Fernandez Gutierrez went to a medical clinic after he was beaten at a

signature-gathering event; (2) whether Fernandez Gutierrez went to the hospital in

an ambulance with Negrette after being attacked at the “First Justice” headquarters

on August 28, 2004; (3) how many people were kidnaped from a “First Justice”

meeting in June 2005; and (4) whether a third vehicle or a Bolivarian party vehicle

caused an accident with the petitioners on August 3, 2005.

Because the IJ and the BIA provided specific, cogent reasons for the

petitioners’ adverse credibility determination, the burden shifted to the petitioners

to show that the decision was unsupported by such reasons or was not based on

substantial evidence. See Chen, 463 F.3d at 1231. The petitioners’ assertions on

appeal fail to meet this burden. The inconsistencies found by the IJ and affirmed

by the BIA are supported by the IJ and BIA’s reasoning and the evidence in the

record. Further, it is immaterial whether or not these inconsistencies go to the

heart of the petitioners’ claims because the REAL ID Act applies. Accordingly, we

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deny the petitioners’ petition for review regarding their application for asylum,

withholding of removal, and CAT relief.

PETITION DENIED.

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