NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SERGUEY HERNANDEZ DELGADO, No. 20-72178 Petitioner, Agency No. A203-700-501 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 27, 2022 Submission Withdrawn July 28, 2022 Resubmitted May 18, 2023 San Francisco, California Before: GRABER and OWENS, Circuit Judges, and BAKER,** International Trade Judge. Dissent by Judge BAKER. Serguey Hernandez Delgado, a native and citizen of Cuba, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. an immigration judge’s (“IJ”) denial of asylum. We have jurisdiction under 8 U.S.C. § 1252. Because the BIA adopted and affirmed the decision of the IJ with respect to all issues raised by Petitioner in his petition for review, we review the IJ’s decision directly. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc). We grant the petition in part, deny the petition in part, and remand. 1. Reviewing de novo, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), we conclude that the IJ did not violate Petitioner’s due process rights. Petitioner cannot show that any of the challenged conduct caused “error and substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). First, the IJ at Petitioner’s master calendar hearing adequately advised him of the requirement to submit English translations of corroborating evidence and gave him sufficient time to submit such evidence. Second, any delay in transmitting evidence to the presiding IJ was not prejudicial because the IJ paused the hearing to review the late-arriving evidence. Third, Petitioner was not prejudiced by the fact that the proceedings were conducted via video conference. “The INA expressly authorizes hearings by video conference, even without an alien’s consent,” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012), and Petitioner “fail[s] to establish that the outcome of his hearing may have been affected by the fact that his hearing was conducted by video conference,” id. at 1200 (citation and internal quotation marks omitted). Finally, the IJ did not 2 express frustration in a manner that indicated prejudice against Petitioner or prevented the introduction of evidence. Cf. Colmenar v. INS, 210 F.3d 967, 971– 73 (9th Cir. 2000) (concluding that a due process violation occurred when the IJ pre-judged the petitioner’s claim and did not provide the petitioner with a reasonable opportunity to present evidence on his behalf). 2. Reviewing for substantial evidence, Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021), we hold that the record compels the conclusion that Petitioner established past persecution.1 “To demonstrate past persecution, [Petitioner] must establish that (1) [his] ‘treatment …
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