09-2061 -ag

Garvey v. Holder BIA Roha n, IJ A097 530 818 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYORDER 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 C ircuit 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 1 0 Convention Against Torture (“CAT”). In re Garvey, No. A097 1 1 530 818 (B.I.A. Apr. 16, 2009), aff’gNo. A097 530 818 1 2 (Immig. Ct. N.Y. City Nov. 15, 2007). We assume the 1 3 parties’ familiarity with the underlying facts and 1 4 procedural history in this case. 1 5 Under the circumstances of this case, we review the 1 6 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 1 8 applicable standards of review are well established. See 1 9 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey , 546 F.3d 2 0 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey , 529 2 1 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 1 0 be persecuted as a returning deportee who would be viewed as 1 1 an outsider. Finally, he claimed that he would be 1 2 persecuted on account of his political opinion. We find no 1 3 error in the agency’s rejection of each of these claims, 1 4 which we address in turn. 15 A. Particular Social Group 16 17 1. Family Ties 18 1 9 Garvey argued that his relationship to his mother 2 0 constituted a particular social group, and that because she 2 1 criticized a local “don,” he would be persecuted. In its 2 2 decision, the BIA assumed that Garvey’s family ties 2 3 constituted a social group, but nonetheless found that 2 4 Garvey failed to establish a well-founded fear on account of4 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” 1 0 gang, but concedes that the attacks did not occur because of 1 1 their relationship to his mother. Under these 1 2 circumstances, we are not compelled to find error in the 1 3 agency’s conclusion that Garvey failed to show an 1 4 objectively reasonably fear of persecution on account of his 1 5 family ties. Manzur v. U.S. Dep’t of Homeland Sec. , 494 1 6 F.3d 281, 289 (2d Cir. 2007) 17 2. Returning Deportee 18 1 9 Although both the IJ and the BIA suggested that 2 0 Garvey’s proposed particular social group of returning 2 1 deportees who will be viewed as “outsiders” was not 2 2 cognizable, the BIA rested its decision on Garvey’s failure 2 3 to demonstrate that he would suffer harm on account of his5 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 1 0 314 n.3. 11 B. Political Opinion 1 2 In addition, the IJ did not err in finding that Garvey 1 3 failed to establish that he would be targeted by criminal 1 4 gangs on account of his political neutrality. Although 1 5 Garvey asserts that gang members who control the political 1 6 parties in Jamaica will not accept his desire to remain 1 7 politically neutral, he presented no evidence that gangs 1 8 target such individuals, and even acknowledged at his 1 9 hearing that “he does not really understand the political 2 0 situation in Jamaica.” Because Garvey failed to provide any 2 1 evidence that Jamaican gangs target individuals on account 2 2 of their political neutrality, the IJ reasonably found that6 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] 1 0 legal responsibility to prevent such activity.” 8 C.F.R. 1 1 1208.18(a)(7). Here, Garvey’s mother, Stephanie Philips, 1 2 testified that although the police attempt to assist the 1 3 community, individuals are reluctant to call them for help. 1 4 Indeed, far from acquiescing in any torture, the record 1 5 reflects that the police actively engage and pursue gang 1 6 members. Philips’s testimony is supported by the 2006 1 7 Country Report on Human Rights Practices for Jamaica, which 1 8 states that “the police frequently employed lethal force in 1 9 apprehending criminal suspects.” Thus, the agency 2 0 reasonably found that Garvey failed to demonstrate a 2 1 likelihood of torture with the knowledge or acquiescence of 2 2 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 1 1 FOR THE COURT: 1 2 Catherine O’Hagan Wolfe, Clerk 13 14 15 16