Vachiraporn Vivorakit v. Loretta E. Lynch , 609 F. App'x 464 ( 2015 )

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NOT FOR PUBLICATION MOLLY C. DWYER, CLERK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.
4