10-3977-ag
Keita v. Holder

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of October, two thousand twelve.

Present:          ROSEMARY S. POOLER,
                  RICHARD C. WESLEY,
                  RAYMOND J. LOHIER, JR.
                             Circuit Judges.

_____________________________________________________

MOUSSA KEITA,

                                Petitioner,

                          -v-                                                10-3977-ag

ERIC H. HOLDER, JR., ATTORNEY GENERAL,1

                        Respondent.
_____________________________________________________

Appearing for Petitioner:       Patrick C. McGuinness, Scotch Plains, N.J.

Appearing for Respondent:       Derek C. Julius, Senior Litigation Counsel for Office of
                                Immigration Litigation, Douglas E. Ginsburg, Assistant Director
                                for Office of Immigration Litigation, Tony West, Assistant United
                                States Attorney General, United States Department of Justice,
                                Washington, D.C.


        1
         Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
       Petition for review of an order of the Board of Immigration Appeals (“BIA”).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said BIA be and it hereby is AFFIRMED.

         Moussa Keita (“petitioner”) seeks review of a September 10, 2010, order and decision of
the BIA, affirming the April 12, 2010 decision of the Immigration Judge (Page, J.), ordering that
the petitioner’s application for relief pursuant to Article 3 of the Convention Against Torture
(“CAT”), with reference to deferral, be denied. The issue presented by this petition for review is
whether the BIA erred in holding that the respondent’s application for relief pursuant to CAT
was properly denied because Keita failed to prove it was “more likely than not” that he would be
tortured upon return to Guinea. See 8 C.F.R. §1208.17.
         We assume, without deciding, that we have jurisdiction in this case of denial of deferral
of removal. See Conyers v. Rossides, 558 F.3d 137, 150 (2d Cir. 2009) (assuming hypothetical
jurisdiction over claims where “question is one of statutory rather than constitutional
jurisdiction”).
         However, we DENY the petition on the merits because we agree with the initial fact
finder’s determination, and the BIA’s affirmation, that Keita failed to meet his burden of proof
that it was “more likely than not” he would be tortured upon return to Guinea. The pending
motion for a stay of deportation is DISMISSED as moot. The previously granted stay of
deportation is VACATED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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