                                                                          FILED
                                                                           JUL 06 2015
                            NOT FOR PUBLICATION                        MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


VACHIRAPORN VIVORAKIT,                          No. 14-70972

              Petitioner,                       Agency No. A073-433-678

 v.
                                                MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 12, 2015
                             San Francisco, California

Before: HAWKINS and WATFORD, Circuit Judges and ROTHSTEIN,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
      Petitioner, a native citizen of Thailand, petitions for review of the decision of

the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration

Judge (“IJ”) denying Petitioner’s application for deferral of removal under the

Convention Against Torture (“CAT”). Because the parties are familiar with the facts,

we do not recite them here.

      We find that the BIA’s use of the “more likely than not” and “clear probability”

standards was not in error. In the context of a withholding of removal hearing, “clear

probability” and “more likely than not” are equivalent. INS v. Stevic, 467 U.S. 407,

424 n.19 (1984) (noting that “clear probability” is interchangeable with “likely” and

does not indicate that the BIA was using a “clear and convincing” standard); see also,

Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (holding that “clear

probability” means “it is ‘more likely than not’”) (citing INS v. Cardoza–Fonseca, 480

U.S. 421, 429 (1987)).

      We also conclude that the BIA’s determination that Petitioner did not establish

that it was more likely than not that she would be tortured if removed to Thailand was

supported by substantial evidence. Where an application for deferral of removal under

the CAT rests on a “hypothetical chain of events,” the applicant must demonstrate that

each link in the chain is more likely than not to occur. In re J.F.F., 23 I. & N. Dec.

912, 917–18, 918 n.4 (A.G. 2006) (citing In re Y.L., 23 I. & N. Dec. 270, 282 & n.16


                                          2
(A.G. 2002)). Petitioner did not establish that it was more likely than not that she

would be prosecuted by the Thai government or that, if prosecuted, she would be

subject to incarceration, especially having already served time in a United States

facility.

       Even if Petitioner had been able to show that it was more likely than not that

she would be incarcerated in Thailand, Petitioner did not establish that it was more

likely than not that this incarceration would constitute torture under the CAT. In order

to constitute torture, “an act must be specifically intended to inflict severe physical or

mental pain or suffering. An act that results in unanticipated or unintended severity

of pain and suffering is not torture.” 8 C.F.R. § 1208.18(a)(5). Substantial evidence

supported the BIA’s finding that the Thai government does not intend to torture

inmates, but rather, that poor prison conditions are a result of “budgetary and

management problems.”

       Finally, the BIA was correct in denying Petitioner’s due process claims.

Petitioner claims that removal violates her right to due process because it terminates

her parental rights. We have previously held that there is “no authority to suggest the

Constitution provides . . . a fundamental right to reside in the United States simply

because other members of [a person’s] family are citizens or lawful permanent

residents.” Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th


                                            3
Cir. 2010) (quoting De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009)).

In addition, we find no basis for the assertion that removal would actually terminate

Petitioner’s parental rights. Finally, while Petitioner asserts her interest in protecting

her parental rights, she presents no evidence indicating that she has attempted to

protect her parental rights by utilizing the procedures available to her through the

Department of Homeland Security.1

      PETITION DENIED.




      1
         In 2013, U.S. Immigration and Customs Enforcement (“ICE”) issued a
directive entitled “Facilitating Parental Interests in the Course of Civil Immigration
Enforcement Activities,” 90 No. 33 Interpreter Releases 1775 (Sep. 2, 2013), that
allows detained parents to appear in-person in family court proceedings related to
custody. The Directive requires ICE to accommodate a detained parent’s efforts to
make provisions for their minor children and allows ICE the discretion to permit a
removed parent to return to the United States for the sole purpose of attending a
family court hearing related to the termination of parental rights.
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