United States Court of Appeals

for the Fifth Circuit

No. 21-60003

Summary Calendar

Cesar Andres Fortuny Diaz, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A201 671 555

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

Cesar Andres Fortuny Diaz, a native and citizen of Cuba, petitions for 

review of an order by the Board of Immigration Appeals (BIA) dismissing his 

appeal from the denial of his application for asylum, withholding of removal, 

and relief under the Convention Against Torture (CAT). He challenges the 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2022

Lyle W. Cayce

Clerk

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determination that he lacked credibility, argues that he is entitled to 

protection under the CAT, and claims that his due process rights were 

violated. 

We review the BIA’s decision and consider the immigration judge’s

(IJ) decision only to the extent it influenced the BIA. Singh v. Sessions, 880 

F.3d 220, 224 (5th Cir. 2018). Factual findings, including an adverse 

credibility determination, are reviewed for substantial evidence. AvelarOliva v. Barr, 954 F.3d 757, 763 (5th Cir. 2020). 

Despite Fortuny Diaz’s assertions to the contrary, the adverse 

credibility determination was supported by specific reasons based on the 

evidence presented and was, under the totality of the circumstances, 

substantially reasonable. See Singh, 880 F.3d 225-26. Because the adverse 

credibility determination was supported by “specific and cogent reasons,”

the record does not compel a finding that he was credible or that no 

reasonable factfinder could have made an adverse credibility finding. Zhang 

v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Accordingly, the lack of 

credible evidence precluded him from meeting his burden of proof for asylum 

and withholding of removal. See Arulnanthy v. Garland, 17 F.4th 586, 593-97 

(5th Cir. 2021); Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012). 

To establish entitlement to relief under the CAT, an alien must prove 

that it is more likely than not that he will be tortured with the consent or 

acquiescence of public officials if he returns to the particular country in 

question. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). While Fortuny Diaz 

argues that the BIA erred in treating the adverse credibility determination as 

dispositive of his claim for protection under the CAT, the record reflects that 

the BIA acknowledged that the record contained evidence of human rights 

violations in Cuba but found that there was nothing in the record, besides his 

discredited testimony, indicating that he would be singled out for torture. 

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Moreover, while he has introduced documentary evidence of his contacts 

with the Cuban police, this evidence only weighs against the BIA’s 

conclusion and does not compel a contrary result. See Martinez-Lopez v. Barr, 

943 F.3d 766, 769 (5th Cir. 2019). Accordingly, substantial evidence 

supports the BIA’s determination that he is not entitled to protection under 

the CAT. 

Finally, “[t]o prevail on a due process claim, an alien must make an 

initial showing of substantial prejudice by making ‘a prima facie showing that 

the alleged violation affected the outcome of the proceeding.’” ArteagaRamirez v. Barr, 954 F.3d 812, 813 (5th Cir. 2020) (quoting Okpala v. 

Whitaker, 908 F.3d 965, 971 (5th Cir. 2018)). While Fortuny Diaz alleges 

that the IJ falsely indicated that he waived his right to appeal his initial order 

of removal, he is unable to demonstrate that he was prejudiced because the 

order of removal was vacated and his proceeding was remanded so that he 

could seek asylum, withholding of removal, protection under the CAT, or 

any other relief for which he was eligible. Moreover, despite his assertions to 

the contrary, there is no evidence of “hostility due to extrajudicial sources or 

a deep-seated favoritism or antagonism that would make fair judgment 

impossible.” Singh v. Garland, 20 F.4th 1049, 1055 (5th Cir. 2021) (internal 

quotation marks and citation omitted). Accordingly, Fortuny Diaz has failed 

to demonstrate that his due process rights were violated. 

For the foregoing reasons, the petition for review is DENIED. 

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