# United States Court **of Appeals**  **f or 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 Cir cuit**  **R ule**  47.5, the court has determined that this opinion should n ot be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 5, 2022
Lyle W. Cayce Clerk Case: 21-60003 Document: 00516267880 Page: 1 Date Filed: 04/05/2022No. 21

- 60003

2 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 j udge’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. Avelar

Oliva v. Barr , 954 F.3d 757, 763 (5th Cir. 2020)

. Despite Fortuny Diaz’s assertions to the contrary, the adverse credibility determination wa s supported by specific reasons based on the evidence presented and was, under the totality of the circumstances, substantially reasonable. See Singh , 880 F.3d 22 5

- 26. Because the adverse credibility determination was supported by “ specific and cogent re asons ,” 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 t he 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 ther e was nothing in the record, besides his discredited testimony, indicating that he would be singled out for torture. Case: 21-60003 Document: 00516267880 Page: 2 Date Filed: 04/05/2022No. 21

- 60003

3 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 prev ail 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.’” Arteaga

Ramirez v. Barr , 954 F.3d 812, 813 (5th Cir. 2020) (qu oting 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, 10 55 (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**

. Case: 21-60003 Document: 00516267880 Page: 3 Date Filed: 04/05/2022