                                                                           FILED
                             NOT FOR PUBLICATION
                                                                           SEP 04 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


FANY ARYANE FAJARDO-PAZ;                         No.   17-71056
LOHANY SAMAHY HERNANDEZ-
FAJARDO,                                         Agency Nos.         A206-733-003
                                                                     A206-733-004
              Petitioners,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                             Submitted August 30, 2019**
                                Seattle, Washington

Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.

      Fany Aryane Fajardo-Paz (“Petitioner”), on behalf of herself and her minor

daughter Lohany Samahy Hernandez-Fajardo, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judge’s (“IJ”) decision denying her application for asylum, withholding of

removal, and CAT protection. We deny the petition.

      We have jurisdiction under 8 U.S.C. § 1252. “We review denials of asylum,

withholding of removal, and CAT relief for substantial evidence and will uphold a

denial supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir.

2014) (internal citations omitted).

      1. The BIA did not commit error in affirming the IJ’s adverse credibility

finding. We afford agency credibility determinations a “healthy measure of

deference” because “IJs are in the best position to assess demeanor and other

credibility cues that we cannot readily access on review.” Shrestha v. Holder, 590

F.3d 1034, 1041 (9th Cir. 2010). To overturn an adverse credibility finding,

Petitioner bears the burden to establish that no reasonable fact finder could find her

testimony not credible. See Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006).

She cannot do so. In this case, Petitioner testified inconsistently on several issues,

some of which reached the foundation of her claim. She misidentified her alleged

abuser, was inconsistent about whether she and her abuser had any children

together, and provided conflicting testimony about her abuser’s gang affiliation.

When provided the opportunity to explain her discrepant testimony, she responded


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by laughing, smiling, or expressing nervousness, rather than answering the

questions posed. While the BIA gave some weight to Petitioner’s PTSD diagnosis

in explaining this behavior, it found that the diagnosis failed to fully justify the

discrepancies in Petitioner’s testimony. Accordingly, a reasonable fact finder

could credit the BIA’s adverse credibility finding.

      2. The BIA did not commit error in affirming the IJ’s denial of relief under

the Convention Against Torture (“CAT”). To qualify for CAT, Petitioner bears the

burden to establish that “it is more likely than not that [she] would be tortured if

removed to the proposed country of removal,” 8 CFR § 208.16(c)(2), and that such

torture will be “inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.”

8 C.F.R. § 208.18(a)(1). As to the first prong, Petitioner may not meet her burden

by relying on evidence found to be not credible. See Farah v. Ashcroft, 348 F.3d

1153, 1157 (9th Cir. 2003). As to the second prong, we have found that “a

government does not acquiesce in the torture of its citizens merely because it is

aware of torture but powerless to stop it.” Garcia-Milian v. Holder, 755 F.3d

1026, 1034 (9th Cir. 2014) (internal citations omitted). Petitioner has not alleged

that Honduras lacks domestic violence laws, only that its enforcement of those




                                            3
laws is ineffective. Satisfying neither prong, Petitioner is not entitled to relief

under CAT.

      3. Petitioner was not denied due process. “The Fifth Amendment guarantees

due process in deportation proceedings.” Campo-Sanchez v. INS, 164 F.3d 448,

450 (9th Cir. 1999). If Petitioner can establish “sufficiently great” prejudice such

that her rights were violated “in a manner so as potentially to affect the outcome of

the proceedings,” then this Court may find a denial of due process has occurred.

Id. (internal citations omitted). Here, Petitioner has not established any untoward

behavior by the IJ or the BIA. The IJ’s active involvement in Petitioner’s hearing

does not violate due process. 8 C.F.R. § 1003.10 (allowing IJs to question

witnesses in immigration hearings). Even if Petitioner could show that the IJ acted

with some bias against Petitioner, “if the factual record adequately supports the

denial of an alien’s application for relief, we cannot find that the alleged bias held

by the IJ was the basis for the denial of the application.” Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 926 (9th Cir. 2007).

      4. Petitioner challenges the BIA’s refusal to administratively close her case.

Even assuming the BIA or IJ had the power to administratively close the

proceedings, see Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (2018), Petitioner




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fails to argue that administrative closure was appropriate under the governing

standard, see Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 893 (9th Cir. 2018).

      PETITION DENIED.




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