                                                                           FILED
                             NOT FOR PUBLICATION                           MAY 20 2014

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



                             FOR THE NINTH CIRCUIT


PAZ ESPANO MAGALLANES,                           No. 12-72586

               Petitioner,                       Agency No. A200-976-701

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Paz Espano Magallanes, a native and citizen of the Philippines, petitions for

review of the Board of Immigration Appeals’ order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings, applying the standards governing adverse credibility

determinations created by the REAL ID Act, Shrestha v. Holder, 590 F.3d 1034,

1039-40 (9th Cir. 2010), and review de novo claims of due process violations,

Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010). We deny the petition for

review.

      Magallanes alleged past persecution and a fear of future persecution at the

hands of Felix Elivera. Substantial evidence supports the agency’s adverse

credibility determination based on Magallanes’ conviction of a crime involving

fraudulent behavior, see Unuakhaulu v. Gonzales, 416 F.3d 931, 938-39 (9th Cir.

2005) (criminal conviction involving fraud undermined credibility), and based on

Magallanes’ three trips from the Philippines to the United States over 18 years, see

Loho v. Mukasey, 531 F.3d 1016, 1018 (9th Cir. 2008) (voluntary return to country

of alleged persecution undermined credibility). Magallanes’ explanations do not

compel a contrary result. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In

the absence of credible testimony, Magallanes’ withholding of removal claim fails.

See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

      Magallanes’ CAT claim also fails because it is based on the same underlying

events that the agency found not credible, and she does not point to any other


                                          2                                      12-72586
evidence in the record that compels the finding it is more likely than not she would

be tortured by or with the consent or acquiescence of a public official in the

Philippines. See id. at 1156-57.

      Finally, we reject Magallanes’ contention that the IJ violated her due process

rights by not providing her attorney an opportunity to make an opening statement

or a closing argument, because her attorney never requested it, and she fails to

show how the absence of these arguments prejudiced her case. See Lata, 204 F.3d

at 1246 (requiring error and prejudice to prevail on a due process claim). Thus,

Magallanes’ due process claim fails.

      PETITION FOR REVIEW DENIED.




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