          United States Court of Appeals
                      For the First Circuit

No. 14-1696

                      ANTONIO CONDE CUATZO,

                           Petitioner,

                                v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,*

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                   Lynch, Thompson, and Barron,
                          Circuit Judges.


     James A. Welcome and Law Offices of James A. Welcome on brief
for petitioner.
     Annette M. Wietecha, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Joyce R. Branda,
Acting Assistant Attorney General, Civil Division, and Julie M.
Iversen, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.


                          August 5, 2015




     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
            LYNCH, Circuit Judge.              Antonio Conde Cuatzo, a native

and citizen of Mexico, petitions for review of a May 28, 2014,

final order of the Board of Immigration Appeals (BIA) affirming a

January    23,     2014,    Immigration        Judge's      (IJ)    denial     of   his

applications for withholding of removal and protection under the

Convention Against Torture (CAT).

            Because       substantial     evidence        supports     the      adverse

credibility finding and Conde Cuatzo's due process claims are

meritless, we deny the petition.

                                          I.

            After    several      prior    illegal       entries,      Conde     Cuatzo

entered the United States on March 17, 2010.                      He was removed to

Mexico on March 18, 2010, but he illegally reentered the United

States on the same day he was removed.                    He was apprehended by

immigration officials on July 26, 2013, at which time he was issued

a notice of intent to reinstate his prior order of removal.                          On

December 9, 2013, an asylum officer, who concluded that Conde

Cuatzo had established reasonable fear of returning to Mexico,

referred    the    case    to    Immigration      Court     for     withholding-only

proceedings.

            On January 23, 2014, the IJ issued an oral decision

denying Conde Cuatzo's application for relief.                     The IJ found that

Conde     Cuatzo    was    not    credible       on   the    basis     of      numerous

inconsistencies between his three sworn statements: first, to


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Border Patrol agents on March 17, 2010, before his March 18, 2010,

removal; second, to an asylum officer on September 19, 2013, in

his reasonable fear interview; and third, before the IJ on January

23, 2014.    Conde Cuatzo testified to the IJ that he had escaped to

the United States because of three incidents in Mexico in 2008 and

2009 in which members of the Mara 13 gang threatened him and

physically attacked him.     He claimed that he was attacked both

because of his refusal to work for the gangs and because of his

indigenous    heritage.    The   IJ   found   this   testimony   to   be

inconsistent with Conde Cuatzo's prior sworn testimony to the

asylum officer,1 which was that he did not know the identities of

the gang members that beat him up, or why they had targeted him.

The IJ found that both of those statements were inconsistent with

Conde Cuatzo's statement to the Border Patrol agents in 2010 --

just after the three alleged gang encounters -- that his purpose

in coming to the United States was to work and that he had no fear

or concern about being returned to his home country.        Basing his

adverse credibility finding on these and other inconsistencies,


     1  In several places, the IJ mistakenly refers to Conde
Cuatzo's September 19, 2013, reasonable fear interview with an
asylum officer as an interview with the Border Patrol.          For
example, the IJ stated that Conde Cuatzo told the "Border Patrol"
that the gang "knocked out two of his teeth and opened up his
head." This description of the attack is actually found in the
sworn statement Conde Cuatzo gave to the asylum officer on
September 19, 2013 ("they knocked out two of my teeth and they
opened up my head"), not his earlier statement to the Border Patrol
agents.


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the IJ denied Conde Cuatzo's applications for withholding of

removal under the Immigration and Nationality Act and withholding

of removal under CAT.

              Conde Cuatzo appealed to the BIA.          The BIA dismissed his

appeal on May 28, 2014, on the basis that the IJ's adverse

credibility finding was not clearly erroneous.                     The BIA also

rejected     Conde    Cuatzo's   due   process    claims,      finding    that   no

fundamental unfairness and no demonstrated prejudice resulted from

either the IJ's refusal to consider untimely offered evidence or

the IJ's interruptions of counsel during his examination of Conde

Cuatzo.      This petition for review followed.

                                        II.

              Conde    Cuatzo    challenges      the     adverse    credibility

determination and the resulting denial of his withholding of

removal and CAT claims.          To qualify for withholding of removal,

Conde Cuatzo must show that upon deportation, he is "more likely

than   not    to   face   persecution    on    account    of   race,     religion,

nationality, membership in a particular social group, or political

opinion."      Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008)

(quoting Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir. 2005));

see also 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b).                        To

qualify for CAT protection, an applicant must establish that it is

"more likely than not that he or she would be tortured if removed

to the proposed country of removal."             8 C.F.R. § 1208.16(c)(2);


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see also Mazariegos-Paiz v. Holder, 734 F.3d 57, 65 (1st Cir.

2013).       These burdens can be met with the testimony of the

applicant alone; but if the agency determines that the testimony

is not credible, that testimony "may be discounted or completely

disregarded."       Mboowa v. Lynch, No. 13-1367, 2015 WL 4442290, at

*3 (1st Cir. July 21, 2015) (quoting Ying Jin Lin v. Holder, 561

F.3d 68, 71 (1st Cir. 2009)).

             Where, as here, the BIA has deferred to or adopted the

IJ's reasoning, we review both the BIA's decision and relevant

parts of the IJ's decision.           Id. (citing Lutaaya, 535 F.3d at 70).

"We review the BIA's and IJ's credibility determination 'under the

deferential substantial evidence standard.'"                 Id. at *4 (quoting

Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir. 2005)).                 Under this

standard, we will not reverse factual findings unless "the record

would    compel     a    reasonable    adjudicator      to   reach   a   contrary

determination."         Ying Jin Lin, 561 F.3d at 72.

             Here, ample evidence supports the IJ's finding, affirmed

by the BIA.        In his sworn statement to the Border Patrol -- the

one closest in time to the three alleged gang encounters -- Conde

Cuatzo made no mention of the attacks and stated that he had no

reason to fear any harm upon being deported to Mexico.                    It was

only    in   his   second    sworn    statement,   at    the   reasonable   fear

interview, that Conde Cuatzo expressed fear of returning to Mexico;

but at that time, he claimed not to know the identity of the gang


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nor the reason the gang was coming after him.     It was only in his

third statement, before the IJ, that Conde Cuatzo claimed that he

was being targeted by the Mara 13 gang because of his indigenous

heritage.    The record provides ample support for the IJ's finding

that Conde Cuatzo's statements were inconsistent, as well as for

the IJ's finding that Conde Cuatzo failed to provide a meritorious

explanation for the inconsistencies.        This adverse credibility

determination supports the IJ's and BIA's conclusion that Conde

Cuatzo failed to meet his burden of showing that it was more likely

than not that he would be persecuted or tortured if he returns to

Mexico.

                                 III.

            Conde Cuatzo also claims that he was denied a full and

fair hearing, in violation of his right to due process.      To make

out a due process violation, a claimant must show that a procedural

error led to fundamental unfairness as well as actual prejudice.

Toribio-Chavez v. Holder, 611 F.3d 57, 65 (1st Cir. 2010).         We

review such claims de novo.    Id. at 62.

            First, Conde Cuatzo claims that the IJ violated his right

to due process by not admitting into evidence his untimely expert

witness declaration.     Immigration judges have broad discretion

over the conduct of immigration court proceedings.    Id. at 67.   It

was well within the IJ's discretion to exclude a lengthy expert

witness declaration that was offered only on the morning of the


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hearing, a week after the deadline for submission to which Conde

Cuatzo, through his counsel, had previously agreed.             Moreover,

Conde Cuatzo has failed to show prejudice because the denial of

his application was based on an adverse credibility finding and

the excluded expert declaration had no bearing on Conde Cuatzo's

credibility.

          Second, Conde Cuatzo claims that he was denied due

process   because   the   IJ     interrupted   and   directed   counsel's

examination of Conde Cuatzo.       This claim is not supported by the

record and is meritless.       The interruptions were the result of the

IJ correctly sustaining the government's objections to counsel's

repeatedly leading questions.         Moreover, there is no prejudice

because Conde Cuatzo has not shown, or even suggested, that he was

prevented from presenting any testimony that would have affected

the adverse credibility finding.       As such, Conde Cuatzo has failed

to establish any violation of his right to due process.

                                    IV.

          For the reasons stated, the petition for review is

denied.




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