NOT FOR PUBLICATION FILED

DEC 8 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANA ELSY PEREZ-SABORIT, No. 20-73102

Petitioner, Agency No. A213-352-357

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 19, 2021** Submission Withdrawn November 23, 2021 Resubmitted December 8, 2021 San Francisco, California

Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.

Ana Elsy Perez-Saborit, a native and citizen of Cuba, petitions for review of

a Board of Immigration Appeals (BIA) order upholding the immigration judge’s

(IJ) denial of her applications for withholding of removal and protection under the

* 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). Page 2 of 4

Convention Against Torture (CAT). We deny the petition for review.

1. Substantial evidence supports the agency’s adverse credibility

determination. Perez-Saborit’s account of the past harm she experienced in Cuba

changed materially between her initial interview with an immigration official, her

I-589 application, and her subsequent declaration. In her initial interview with the

immigration official, when asked what type of crime or violence she had been a

victim of in Cuba, Perez-Saborit stated only that she had suffered verbal abuse by

the police. In her I-589 application, however, she stated that she had been

“physically and verbally abused” and that “[t]he mistreatment occurred [on]

January 15, 2019.” Then, in Perez-Saborit’s subsequent declaration, she indicated

for the first time that she had suffered an additional incident of significantly greater

physical harm in February 2019.

These alterations were “not ‘details,’ but new allegations that tell a ‘much

different—and more compelling—story of persecution.’” Silva-Pereira v. Lynch,

827 F.3d 1176, 1185 (9th Cir. 2016). It was not unreasonable for the agency to

reject Perez-Saborit’s explanation that she failed to disclose the physical abuse

because the initial interview was “brief,” and that she did not believe she needed to

update her I-589 application to include both instances of physical abuse. See id. at

1186.

Because these material alterations are sufficient under the totality of the Page 3 of 4

circumstances to support the adverse credibility finding, we do not address the

BIA’s additional reasons for affirming the IJ’s adverse credibility determination.

In the absence of credible testimony, Perez-Saborit’s withholding of removal

claim fails.1

2. Substantial evidence also supports the agency’s determination that Perez-

Saborit is ineligible for CAT protection. Perez-Saborit’s claim for relief under

CAT is based on the same testimony that the agency deemed not credible. Because

Perez-Saborit’s generalized country conditions evidence does not compel the

conclusion that she is more likely than not to be tortured, her claim under CAT

fails. See Shrestha v. Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010).

3. The technical disruptions to Perez-Saborit’s merits hearing via video

conference did not violate her due process rights. A due process violation occurs

when (1) the proceeding was so fundamentally unfair that the petitioner was

prevented from reasonably presenting her case, and (2) the petitioner demonstrates

prejudice. Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012). While the

numerous technical disruptions to the merits hearing raise concerns, Perez-Saborit

has failed to show prejudice. Because the grounds on which we uphold the

1 Perez-Saborit did not challenge the BIA’s denial of her motion to reopen to consider her eligibility for asylum, and instead argued only that, if the court overturned the agency’s adverse credibility determination, “remand for consideration of asylum is in order as well.” Any further challenge to the merits of the BIA’s ruling is waived. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013). Page 4 of 4

agency’s adverse credibility determination rest on material alterations to Perez-

Saborit’s claim contained in the evidentiary record she submitted, rather than on

inconsistencies in her hearing testimony that could have been affected by the

disruptions, her due process claim fails.

PETITION FOR REVIEW DENIED.