                                                                               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                            NOT FOR PUBLICATION                                 AUG 26 2011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


                                          2
“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.
                                          3
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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