                                                                           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                            NOT FOR PUBLICATION                             MAY 26 2011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.




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