
    Moussa KEITA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 10-3977-ag.
    United States Court of Appeals, Second Circuit.
    Oct. 15, 2012.
    
      Patrick C. McGuinness, Scotch Plains, N.J., for Petitioner.
    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., for Respondent.
    Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges.
    
      
      . Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant to Federal Rule of Appellate Procedure 43(c)(2).
    
   SUMMARY ORDER

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, /.), 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.  