Charles Bertrand v. Eric Holder, Jr. , 448 F. App'x 744 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES BERTRAND, No. 09-72089
Petitioner, Agency No. A071-553-292
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 14, 2011
San Francisco, California
Before: O’SCANNLAIN, FERNANDEZ, and BYBEE, Circuit Judges.
Charles Bertrand petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) ordering Bertrand removed to Haiti and denying
Bertrand’s petitions for asylum, withholding of removal, and deferral of removal.
As the facts are known to the parties, we repeat them here only as necessary.
I
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Bertrand first argues that the BIA erred when it determined that he was
ineligible for asylum and withholding of removal because his conviction for Sale
of Cannabis in 2001 constituted a “particularly serious crime.” See 8 U.S.C. §§
1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). We have jurisdiction to review such a
determination. See Delgado v. Holder, No. 03-74442, slip op. 11057, 11062 (9th
Cir. Aug. 19, 2011) (en banc). “An offense need not be an aggravated felony to be
a particularly serious crime,” and the BIA “has the authority to designate offenses
as particularly serious crimes through case-by-case adjudication of applications for
asylum and withholding of removal.” Id. In determining that Bertrand’s
conviction for Sale of Cannabis constituted a conviction for a “particularly serious
crime,” the BIA explained that drug trafficking felonies presumptively constitute
particularly serious crimes, and that Bertrand had failed to rebut the presumption.
See In re Y-L-, 23 I. & N. Dec. 270, 276–77 (BIA 2002). The BIA also explained
that Bertrand was convicted concurrently of a separate drug offense, and that he
sold drugs while on probation for aggravated battery, thereby violating his
probation. See In re Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982) (establishing
factors relevant to a “particularly serious crime” determination); see also
Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010). We conclude that the
BIA properly applied the Frentescu factors and that Bertrand failed to
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“demonstrate extraordinary and compelling circumstances that [would] justify
treating [his] drug trafficking” offense as anything other than a particularly serious
crime. In re Y-E, 23 I. & N. at 276.1
II
Bertrand also argues that the BIA abused its discretion when it remanded his
case to the Immigration Judge (“IJ”) in 2008 for further proceedings. Bertrand has
failed, however, to demonstrate that the BIA acted “arbitrarily, irrationally, or
contrary to the law” when it remanded the case to the IJ. See Lainez-Ortiz v. INS,
96 F.3d 393, 395 (9th Cir. 1996); see also 8 C.F.R. § 1003.2(a).
III
Finally, Bertrand argues that the BIA erred in determining that he is
ineligible for deferral of removal under the CAT. Nevertheless, the BIA properly
relied on the State Department’s Haiti Country Report on Human Rights Practices,
2007 (“Country Report”), which indicated that Haiti no longer detains every
repatriated citizen with a criminal record indefinitely. See Sowe v. Mukasey, 538
F.3d 1281, 1285 (9th Cir. 2008). The Country Report clarified that Haiti only
1
Our court has not yet decided on a standard under which to review BIA
adjudications of this nature, see Delgado, No. 03-74442, slip op. at 11063, and we
decline to determine the proper standard of review here. Even reviewing the BIA’s
determination de novo, we are satisfied that the BIA did not err in concluding that
Bertrand had been convicted of a particularly serious crime.
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detains those who were previously convicted of a crime in Haiti. Bertrand has no
such prior conviction. Substantial evidence therefore supports the BIA’s
determination that Bertrand was not likely to be “tortured at the instigation of, or
with the acquiescence of the [Haitian] government.” Silaya v. Mukasey, 524 F.3d
1066, 1073 (9th Cir. 2008); see also 8 C.F.R. § 1208.17(a).
For the foregoing reasons, Bertrand’s petition for review is DENIED.
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