NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAIDY IVETH PENSAMIENTODUARTE; NEISY JASLEMAR 

PENSAMIENTO-DUARTE, 

Petitioners, 

 v. 

ROBERT M. WILKINSON, Acting 

Attorney General, 

Respondent.

No. 19-72331 

Agency Nos. A208-902-918 

A208-902-917 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 1, 2021**

San Francisco, California

Before: IKUTA and NGUYEN, Circuit Judges, and EATON,***Judge.

* 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).

*** Richard K. Eaton, Judge of the United States Court of International 

Trade, sitting by designation.

FILED

FEB 5 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Saidy Iveth Pensamiento-Duarte,

1

a native and citizen of Guatemala, applied 

for asylum, withholding of removal, and protection under the Convention Against 

Torture (CAT). After making an adverse credibility determination, the Immigration 

Judge (IJ) denied all relief, and the Board of Immigration Appeals (BIA) dismissed 

Pensamiento’s subsequent appeal. Pensamiento now petitions for review, 

challenging the adverse credibility determination, and arguing that she experienced 

“physical and mental abuse amounting to torture . . . [which establishes] both past 

persecution and a well-founded fear of future persecution.” We have jurisdiction 

under 8 U.S.C. § 1252(a), and we deny the petition.

1. We review adverse credibility determinations under a substantial evidence 

standard. See Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014). We review both the 

BIA’s decision and the IJ’s decision where, as here, the BIA adopts the IJ’s analysis 

and adds its own reasoning. See, e.g., Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 

2000). 

Substantial evidence supports the agency’s finding. Pensamiento’s testimony 

before the IJ was inconsistent with statements she made during her asylum interview 

and in her declaration. When testifying about her escape attempts from her abusive 

domestic partner, she stated that she tried to escape twice, even though, at her asylum 

1 Pensamiento’s minor daughter is a derivative beneficiary of 

Pensamiento’s asylum application.
3 

interview, she had claimed that she tried to escape five times. She was unable to 

provide a consistent and plausible timeline as to her pregnancy and childbirth, her 

state of consciousness, the alleged injuries she suffered, and her eventual escape. 

She admitted that she exaggerated her account because she did not want to be 

deported and said that she was willing to make false statements to prevent her 

deportation.

Based on these inconsistencies and admissions, the agency’s adverse 

credibility determination was supported by substantial evidence. The inconsistencies 

in Pensamiento’s testimony concerned the nature, extent, and cause of the 

persecution that she claimed warranted relief. Considering the totality of the 

circumstances, the BIA properly affirmed the adverse credibility determination. See 

Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010).

2. Pensamiento thus could not establish, by credible testimony, the requisite 

subjective, well-founded fear of future persecution—or a history of past 

persecution—necessary for asylum and withholding of removal. See Kaiser v. 

Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004); see also Jiang v. Holder, 754 F.3d 733, 

740 (9th Cir. 2014) (holding that the standard for withholding of removal is higher 

than the standard for asylum, and thus if a petitioner’s asylum claim fails, her 

withholding of removal claim will also fail). Accordingly, we deny her petition as 

to these forms of relief. 
4 

3. Finally, the agency’s determination that Pensamiento is not entitled to 

protection under CAT is supported by substantial evidence. To be entitled to CAT 

protection, a petitioner bears the burden of showing that she is “more likely than 

not” to be tortured, with acquiescence (including willful blindness) by government 

officials, if returned to her home country. See Garcia v. Holder, 749 F.3d 785, 791 

(9th Cir. 2014) (citing 8 C.F.R. § 1208.16(c)(3)). We review factual findings 

underlying the denial of relief under CAT for substantial evidence. See Zheng v. 

Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).

Because her testimony was not credible, the only evidence Pensamiento has 

to support her CAT claim is documentary evidence of country conditions in 

Guatemala. The country conditions evidence here is too generalized to compel the 

conclusion that Pensamiento herself likely will be tortured if deported to Guatemala.

See Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (“Although the 

reports confirm that torture takes place in Yemen, they do not compel the conclusion 

that [the noncitizen] would be tortured if returned.”). Therefore, substantial evidence 

supports the agency’s denial of CAT protection.

PETITION DENIED.