09-2061-ag

Garvey v. Holder

BIA

Rohan, IJ

A097 530 818

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 11 day of May, two thousand ten. th

5

6 PRESENT:

7 ROBERT D. SACK,

8 ROBERT A. KATZMANN,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 MERRICK GARVEY,

14 Petitioner, 

15

16 v. 09-2061-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Alexander J. Segal, Grinberg &

24 Segal, PLLC, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; John S. Hogan, Senior

28 Litigation Counsel; Channah M.

29 Farber, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 The Petitioner, Merrick Garvey, a native and citizen of

6 Jamaica, seeks review of an April 16, 2009, order of the BIA

7 affirming the November 15, 2007, decision of Immigration

8 Judge (“IJ”) Patricia A. Rohan denying his application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Garvey, No. A097

11 530 818 (B.I.A. Apr. 16, 2009), aff’g No. A097 530 818

12 (Immig. Ct. N.Y. City Nov. 15, 2007). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as supplemented by the BIA’s decision. See

17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well established. See 

19 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d

20 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

21 F.3d 99, 110 (2d Cir. 2008). 
3

1 I. Asylum and Withholding of Removal

2 In order to establish eligibility for asylum and

3 withholding of removal, the applicant must show that any

4 harm he fears would occur on account of his race, religion,

5 nationality, membership in a particular social group, or

6 political opinion. See 8 U.S.C. §§ 1158(b)(1)(B)(i),

7 1231(b)(3)(A). Garvey alleged that he feared persecution on

8 account of his relationship to his mother, who had been

9 critical of a local “don.” He further claimed that he would

10 be persecuted as a returning deportee who would be viewed as

11 an outsider. Finally, he claimed that he would be

12 persecuted on account of his political opinion. We find no

13 error in the agency’s rejection of each of these claims,

14 which we address in turn. 

15 A. Particular Social Group

16

17 1. Family Ties

18

19 Garvey argued that his relationship to his mother

20 constituted a particular social group, and that because she

21 criticized a local “don,” he would be persecuted. In its

22 decision, the BIA assumed that Garvey’s family ties

23 constituted a social group, but nonetheless found that

24 Garvey failed to establish a well-founded fear on account of
4

1 his membership in that group. In support of that finding,

2 the BIA agreed with the IJ that the fact that his mother’s

3 sister lives in Jamaica without harm undermined his claim. 

4 See Melgar de Torres v. Reno, 191 F.3d 307, 313 n. 2 (2d

5 Cir. 1999) (finding that where asylum applicant’s family

6 members continued to live in applicant’s native country,

7 claim of well-founded fear was diminished). Garvey does not

8 address that finding. Rather, he asserts that certain

9 family members were beaten by members of the local “don’s”

10 gang, but concedes that the attacks did not occur because of

11 their relationship to his mother. Under these

12 circumstances, we are not compelled to find error in the

13 agency’s conclusion that Garvey failed to show an

14 objectively reasonably fear of persecution on account of his

15 family ties. Manzur v. U.S. Dep’t of Homeland Sec., 494

16 F.3d 281, 289 (2d Cir. 2007) 

17 2. Returning Deportee

18

19 Although both the IJ and the BIA suggested that

20 Garvey’s proposed particular social group of returning

21 deportees who will be viewed as “outsiders” was not

22 cognizable, the BIA rested its decision on Garvey’s failure

23 to demonstrate that he would suffer harm on account of his
5

1 membership in that group. On appeal, Garvey points to no

2 evidence that returning deportees are targeted by Jamaican

3 gangs as a result of their status as deportees. Moreover,

4 we find Garvey’s argument that he has a well-founded fear of

5 persecution because he “could walk right into an area

6 controlled by a rival gang and be harmed” unpersuasive, as

7 allegations of high levels of general crime and violence in

8 an applicant’s native country are insufficient to establish

9 eligibility for asylum. See Melgar de Torres, 191 F.3d at

10 314 n.3. 

11 B. Political Opinion 

12 In addition, the IJ did not err in finding that Garvey

13 failed to establish that he would be targeted by criminal

14 gangs on account of his political neutrality. Although

15 Garvey asserts that gang members who control the political

16 parties in Jamaica will not accept his desire to remain

17 politically neutral, he presented no evidence that gangs

18 target such individuals, and even acknowledged at his

19 hearing that “he does not really understand the political

20 situation in Jamaica.” Because Garvey failed to provide any

21 evidence that Jamaican gangs target individuals on account

22 of their political neutrality, the IJ reasonably found that
6

1 Garvey did not establish a well-founded fear based on his

2 political opinion. See Manzur, 494 F.3d at 289.

3 II. CAT Relief

4 Finally, the record supports the IJ’s finding that

5 Garvey failed to establish a likelihood of torture with the

6 knowledge or acquiescence of government officials. 

7 Government officials acquiesce to torture when, “prior to

8 the activity constituting torture,” the officials “have

9 awareness of such activity and thereafter breach [their]

10 legal responsibility to prevent such activity.” 8 C.F.R.

11 1208.18(a)(7). Here, Garvey’s mother, Stephanie Philips,

12 testified that although the police attempt to assist the

13 community, individuals are reluctant to call them for help. 

14 Indeed, far from acquiescing in any torture, the record

15 reflects that the police actively engage and pursue gang

16 members. Philips’s testimony is supported by the 2006

17 Country Report on Human Rights Practices for Jamaica, which

18 states that “the police frequently employed lethal force in

19 apprehending criminal suspects.” Thus, the agency

20 reasonably found that Garvey failed to demonstrate a

21 likelihood of torture with the knowledge or acquiescence of

22 government officials. 
7

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9

10

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

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