Volsaint Doissaint v. Eric Holder, Jr. , 434 F. App'x 685 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VOLSAINT DOISSAINT, AKA Dolsin No. 09-71739
Volsin,
Agency No. A072-385-953
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VOLSAINT DOISSAINT, AKA Dolsin No. 10-70580
Volsin,
Agency No. A072-385-953
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 2, 2011
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Following remand by this Court in Doissaint v. Mukasey, 538 F.3d 1167(9th Cir. 2008), Volsaint Doissaint, a native and citizen of Haiti, petitions for
review of two orders by the Board of Immigration Appeals (“BIA”). First, he
challenges an order of the BIA affirming the denial of his application for deferral
of removal under the Convention Against Torture (“CAT”) by the Immigration
Judge (“IJ”). Doissaint asserts a fear of torture if returned to Haiti on account of
his political beliefs. Second, he contends that the BIA abused its discretion by
denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petitions.
The IJ denied Doissaint’s CAT claim because he found Doissaint not
credible and because Doissaint failed to show any “‘clear probability’ of the risk of
‘torture’ if he had to return to Haiti.” The BIA affirmed, finding “no clear error in
the determination that [Doissaint] is not credible nor with the conclusion that he
failed to meet his burden of proof.” Doissaint challenges the adverse credibility
finding, but even assuming he is correct, we must nevertheless deny his petition,
because Doissaint has failed to demonstrate that it is more likely than not that he
would be tortured if removed. See Guo v. Ashcroft, 361 F.3d 1194, 1204 (9th Cir.
2
2004) (stating that remand is not necessary on a credibility determination if the
BIA addressed the merits of the claim). Doissaint’s last political activities
occurred in 1990 and he was never arrested or detained in Haiti. Although he
claims he was shot in the leg in 1992, this would not established a likelihood that
he would be tortured if he were to return to Haiti now. Doissaint therefore cannot
demonstrate that he has met the standard for protection under CAT. See Dhital v.
Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (denying CAT relief where the
evidence does not indicate that petitioner would face any particular threat of torture
beyond that of which all citizens of Nepal are at risk).
Doissaint’s due process rights were not violated by the BIA’s refusal to
allow supplemental briefings on remand. Petitioner had previously briefed the
issues and has not shown he was denied the opportunity to raise any new material
matters. See Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010) (requiring both
fundamental unfairness and prejudice for a due process violation).
The BIA did not abuse its discretion in denying Doissaint’s motion to reopen
that was grounded upon his criminal deportee status. The BIA considered all the
evidence submitted by Doissaint and concluded that he failed to make out a prima
facie case for protection under CAT. In its January 28, 2010 order, the BIA cited
to a number of exhibits submitted by Doissaint, including Exhibit H (expert
3
testimony of Professor Stotzky) and Exhibit O (affidavit of Thomas Griffin). It
found that there was no evidence that the Haitian government specifically intended
to torture criminal deportees, relying upon Matter of J-E-, 23 I. & N. Dec. 291(BIA 2002) (en banc) (indefinite detention, deplorable prison conditions, and
mistreatment by prison officials are not evidence of specific intent to torture). See
Theagene v. Gonzales, 411 F.3d 1107, 1113 (9th Cir. 2005) (“The Board’s decision
in Matter of J-E is not unreasonable, so we defer to the Board’s interpretation.”);
Villegas v. Mukasey, 523 F.3d 984, 988 (9th Cir. 2008). The BIA decision reflects
it considered the evidence the Petitioner offered. There was no abuse of discretion.
See 8 C.F.R. § 1003.2(c)(2).
The BIA also did not abuse its discretion in denying Doissaint’s motion to
reopen to adjust his status. Doissaint had previously adjusted his status to that of a
lawful permanent resident (“LPR”) and therefore cannot “re-adjust” his status to
that of an LPR under section 209 of the Immigration and Nationality Act, 8 U.S.C.
§ 1159, to avoid removal. See Robleto-Pastora v. Holder, 591 F.3d 1051, 1060
(9th Cir. 2010).
PETITIONS FOR REVIEW DENIED.
4