   09-2734-ag (L)
   Thiersaint v. Holder
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A044 588 716
                           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 28th day of February, two thousand twelve.

   PRESENT:
            JON O. NEWMAN,
            ROBERT A. KATZMANN,
                     Circuit Judges.*
   _______________________________________

   EMMANUEL THIERSAINT,
            Petitioner,

                          v.                              09-2734-ag (L);
                                                          11-4247-ag (Con)
                                                          NAC
   ERIC H. HOLDER, JR., UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _______________________________________

   FOR PETITIONER:                  Muneer I. Ahmad, New Haven, CT.


                 *
             The Honorable Susan L. Carney was originally a member of
       this panel but recused herself from consideration of this
       appeal. The remaining two members of the panel, who are in
       agreement, decide this appeal in accordance with Second
       Circuit Internal Operating Procedure E.
FOR RESPONDENT:           Tony West, Assistant Attorney
                          General; Susan K. Houser, Senior
                          Litigation Counsel; W. Daniel Shieh,
                          Trial Attorney, Office of
                          Immigration Litigation, United
                          States Department of Justice,
                          Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Emmanuel Thiersaint, a native and citizen of Haiti,

seeks review of a May 27, 2009 order of the BIA, affirming

the February 27, 2009 decision of Immigration Judge (“IJ”)

Michael W. Straus, which denied his application for deferral

of removal under the Convention Against Torture (“CAT”).     In

re Emmanuel Thiersaint, No. A044 588 716 (B.I.A. May 27,

2009), aff’g No. A044 588 716 (Immig. Ct. N.Y. City Feb. 27,

2009).   Thiersaint also seeks review of a September 19, 2011

decision of the BIA denying his motion to reopen, and moves

for leave to proceed in forma pauperis (“IFP”) and for a

stay of removal in connection with this petition.    In re

Emmanuel Thiersaint, No. A044 588 716 (B.I.A. Sept. 19,

2011). The petitions for review are consolidated for

purposes of this order.    We assume the parties’ familiarity

                                2
with the underlying facts and procedural history of the

case.

I.   Docket Number 09-2734 - Direct Appeal

     Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to

review any final order of removal against an alien who is

removable by reason of having been convicted of an

aggravated felony.     See De La Rosa v. Holder, 598 F.3d 103,

107 (2d Cir. 2010); see also Poole v. Mukasey, 522 F.3d 259,

262 (2d Cir. 2008).    Notwithstanding 8 U.S.C.

§ 1252(a)(2)(C), we retain jurisdiction to consider any

“constitutional claims or questions of law” raised in a

petition for review.     See 8 U.S.C. § 1252(a)(2)(D).

     Thiersaint does not dispute that he was subject to

removal by virtue of his conviction of an aggravated felony.

Thus, Thiersaint’s conviction of an aggravated felony, which

served as the basis for his order of removal, falls squarely

within the jurisdiction-stripping statute.

See 8 U.S.C. § 1252(a)(2)(C).       However, because Thiersaint

argues in his petition that the BIA erred by failing to

consider his central legal argument in denying his

application for CAT relief, he presents a question of law

for review over which we retain jurisdiction.       See Gui Yin


                                3
Liu v. INS, 475 F.3d 135, 137-38 (2d Cir. 2007) (finding

that we retain jurisdiction to review a petition when the

agency “unambiguously mischaracterized a central element of

the record,” because that raises a question of law).

    Thiersaint argues that the agency failed to address his

central argument that he would be individually and

intentionally singled out for torture by Haitian prison

officials because of his physical disability.   Thiersaint

further asserts that the BIA failed to consider his claim

under Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007),

wherein this Court held that beyond evidence of inhumane

prison conditions, a claimant can demonstrate a likelihood

of torture by providing some evidence that the authorities

act with the specific intent to inflict severe physical or

mental pain or suffering because of certain characteristics

or medical conditions that a claimant possesses.

      The record reflects that the agency considered all of

Thiersaint’s legal arguments and the evidence he submitted

in support of his claim.   First, the IJ expressly considered

“whether based on [Thiersaint’s] particular characteristics

[he would] be subjected to torture,” and found that while

Thiersaint’s situation presents “a close case,” he had


                              4
failed to establish that he will more likely than not be

tortured upon his return to Haiti, as there was

“insufficient evidence to show widespread physical beatings

intended by Haitian government officials of criminal

deportees, or even criminal deportees similarly situated to

[Thiersaint].”   In re Emmanuel Thiersaint, No. A044 588 716

(Immig. Ct. N.Y. City Feb. 27, 2009); see also Jian Hui Shao

v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (rejecting the

notion that the agency must “expressly parse or refute on

the record each individual argument or piece of evidence

offered by the petitioner”) (internal quotation marks

omitted).   Moreover, although the IJ accorded “some weight”

to a report submitted by Thiersaint’s expert witness, which

suggested that disabled criminal deportees are especially

vulnerable to mistreatment, the IJ reasonably determined

that this evidence was “insufficient . . . to show that

[Thiersaint would] be targeted by Haitian officials for

torture.”   In re Emmanuel Thiersaint, No. A044 588 716

(Immig. Ct. N.Y. City Feb. 27, 2009); see also Xiao Ji Chen

v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

(finding that the weight afforded to the applicant’s

evidence in immigration proceedings “lies largely within the

discretion of the IJ”) (internal quotation marks omitted).

                              5
Indeed, while the expert’s report provides general examples

of the poor prison conditions to which criminal deportees

may be subjected, and discusses in general terms the

treatment of physically disabled persons in Haiti, it does

not identify any specific instances in which a physically

disabled criminal deportee had been targeted for torture

because of his physical characteristics.   See Pierre, 502

F.3d at 121-22.

    Moreover, although the BIA did not expressly address

whether Thiersaint will more likely than not be singled out

for harsh treatment because of his physical disability, as

with the IJ, we presume that the BIA “has taken into account

all of the evidence before [it], unless the record

compellingly suggests otherwise.”   Xiao Ji Chen, 471 F.3d at

337 n.17.   Here, nothing in the record compels the

conclusion that the BIA ignored any of Thiersaint’s legal

arguments or the evidence he submitted in support of his

claim.   To the contrary, the BIA expressly referenced the

country condition evidence and the expert witness report in

its decision, and acknowledged Thiersaint’s physical

disability and the potential hardships that he may endure in

prison as a result of his condition, and found that the

“lack of medical care and likely pain that [Thiersaint] will
                              6
experience due to the leg amputation . . . is an unfortunate

but unintended consequence of the poor conditions in the

Haitian prisons,” and that this “unintended consequence is

not the type of proscribed purpose contemplated by the

[CAT].”   In re Emmanuel Thiersaint, No. A044 588 716 (B.I.A.

May 27, 2009).   Because the agency considered the basis of

Thiersaint’s claim and the evidence submitted in support of

that claim, and Thiersaint raises no other legal or

constitutional challenges to the denial of CAT relief, the

agency’s denial of CAT relief is not subject to further

review.   See Pierre, 502 F.3d at 121-22; see also 8 U.S.C.

§ 1252(a)(2)(C),(D).

    We finally address Thiersaint’s argument that he was

deprived of due process when the BIA failed to send him a

copy of the DHS’s opposition brief and denied his untimely

motion for an extension of time to file a reply brief.

Respondent alleges, and petitioner does not dispute, that

the Department of Homeland Security made proper service of

its brief by mailing a copy to petitioner at his correct

address. Because Thiersaint has not cited any legal

authority or procedural rules that explicitly require the

BIA to send him copies of an opposition brief, and because

he has had a meaningful opportunity to address all the
                              7
issues implicated in that brief, we conclude that he has

failed to demonstrate a due process rights violation.

II. Docket Number 11-4247-ag - Motion to Reopen

    Pursuant to 28 U.S.C. § 1915(a) and (e), this Court may

permit an indigent appellant to proceed IFP, but must

dismiss the appeal if the Court determines that it is

frivolous.    An appeal is frivolous when it “lacks an

arguable basis either in law or in fact.”     Neitzke v.

Williams, 490 U.S. 319, 325 (1989).     The jurisdictional bar

contained in 8 U.S.C. § 1252(a)(2)(C) applies equally to a

petition seeking review of the BIA’s denial of a motion to

reopen.     See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir.

2004).

    We review the BIA’s denial of Thiersaint’s motion to

reopen for abuse of discretion.     Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006).    Where, as here, the BIA considers

relevant evidence of country conditions in evaluating the

motion to reopen, we review the BIA’s factual findings under

the substantial evidence standard.     See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

    An alien may file only one motion to reopen and must do

so within 90 days of the agency’s final administrative

decision.    8 U.S.C. § 1229a(c)(7)(A),(C); 8 C.F.R.
                                8
§ 1003.2(c)(2).   Although Thiersaint’s motion was

indisputably untimely because it was filed more than two

years after the BIA issued its final order of removal, there

is no time limitation for filing a motion to reopen if it is

“based on changed country conditions arising in the country

of nationality or the country to which removal has been

ordered, if such evidence is material and was not available

and would not have been discovered or presented at the

previous proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see

also 8 C.F.R. § 1003.2(c)(3)(ii).

    Assuming that we retain jurisdiction over Thiersaint’s

claim that the BIA abused its discretion in finding that his

evidence did not materially affect his eligibility for

deferral of removal under the CAT, his claim is without

merit.   As the BIA noted, while the evidence indicated that

criminal deportees continued to encounter “unduly harsh

conditions” in Haitian prisons, it did not indicate that

Thiersaint will more likely than not be individually and

intentionally singled out for torture by or with the

acquiescence of Haitian prison officials because of his

physical disability.    See 8 C.F.R. § 1208.17; see also

Pierre, 502 F.3d at 121.   Moreover, nothing in the record

compells the conclusion that the BIA failed to consider any
                               9
of Thiersaint’s evidence.     See Jian Hui Shao, 546 F.3d at

169; Xiao Ji Chen, 471 F.3d at 337 n.1.

    Contrary to Thiersaint’s argument that the BIA applied

the wrong legal standard in concluding that his evidence was

not material to his claim for CAT relief, a review of the

record confirms that the BIA properly identified and applied

the standard set forth in 8 C.F.R. § 1003.2(c)(1), which

states that a “motion to reopen proceedings shall not be

granted unless it appears to the Board that evidence sought

to be offered is material and was not available and could

not have been discovered or presented at the former

hearing.”

    For these reasons, Thiersaint’s motion to proceed IFP

is denied and the petition for review is dismissed because

it lacks an arguable basis in law or fact.     See 28 U.S.C.

§ 1915(e); Neitzke, 490 U.S. at 325.

    For the foregoing reasons, the petitions for review are

DENIED.     As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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