FILED NOT FOR PUBLICATION SEP 04 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FANY ARYANE FAJARDO-PAZ; No. 17-71056 LOHANY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 2 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 ...
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