2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
11-18-2004 

# P a rk e r v . Att y Ge n U S A
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-4265

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w . v i l l a no v a . e du/thir dc ir c uit_2004/131* Honorable Rona ld Buckwalt

er, Seni or United St

ates Di strict Judge for t

he Easter n Distri ct of Pennsy

lvania, sitting by de signati on.

1 NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-4265
ONEIL OR

LANDO PARK

ER , Petitioner
v. JOHN ASHCROFT , ATTORN EY GENERAL

OF THE UNITED STATES

On Petition for Review from the Board of Immigration Appeals No. A95 521 657
Argued: November

12, 2004 Before: McKEE

and CHERTOFF , Circuit Judg es, and BUCKWALTER , * Senior District Judge. (Filed Nove

mber 18, 2004) TIMO THY R. BLOC K (Argued) Legal Servi ces of New Jersey 100 Metroplex Drive , Suit e 402 Edison, NJ 088182

Counsel for

Appellant PETER D. KEISLER , Assis tant Attorney General, Civil Divi sion LINDA S. WEND TLAN D, Assist ant Direc tor EDW ARD C. DUR ANT , Attorney MA TTHE W L. ZA BEL, Attorney(Argued) Office of Immigrat

ion Litigati on Civil Divi sion U.S. Department

of Justi ce P.O. Box 878, Ben Frankl in Station Washington, D.C. 20044 Counsel for

Appellee

OPINI ON
Chertoff , Circuit Judge.
Petiti oner, Oneil Orlando Pa rker, s eeks review of a dec ision of the Board of Imm igrati on Appeals r

ejecting his cla

im for a sylum and withholding of re moval on t

he ground of well-fo unded f ear of persecu tion. The relevant facts are t

hese. Before the Imm

igration Judge (“IJ”), Par ker maintained that a s a gay

man in Kingston, Jamai ca, he was subjected to widespread hatred and some actsof violence by prejudiced individuals, a nd that the police were unable to c ontrol the

violence or afford prot

ection. The IJ found Par

ker’s t estim ony t o be credible. In par

ticula r, the I J noted tha

t (1) Par ker’s hom

osexual or

ientat ion was made public in a

n inflam mator y newspaper a

rticle in 1999; (2) Parker wa s late r threa tened and3

hit by members of a neighbo rhood g ang; and (3 ) Parker’s eff orts to relocate elsew here in the town of Kingston were unsatisfactory because he was recognized as a gay man. After his last effort to reloca

te came t o naught in 2001, Parker fled to the United States. The IJ also obse rved, howeve

r, that some of t he gang anim

us agains t Parker

may stem from famil y di sputes be

tween Par ker and the

gang leade

r, and from

the beli ef by

gang
mem bers tha t Parker cooperat ed with poli ce in a m

urder inve stigat

ion. Based on these findings, the IJ concluded that Parker was a m ember of a distinct social group – gay men – and that he was reasonab ly afraid of futu re threats and assau lts. Most significant, the IJ de term ined that this wasa well- founded fear of pe rsecut ion because the p olice cannot c ontrol the g ang that threate ns him with vio lence, at least in part, because of hi s sexual orienta tion. The Board of Immigration Ap peals reversed. T he Board d id not take issu e with the IJ’s findin gs that Parker w as credible; that he was a member of a social g roup that is the subject of widespread social prejudice; and that he had a r easonable basis to fear future har m as a result of this prej udice. Indee d, the Board agreed that the re was a “pervasive an imus towards ho mosexuals in Jamaica,” and noted an A mensty International R eport stating th at police have ill-treated homosexu als. (App. 2). Nevertheless, the Board went on to hold that this does not “es tablish the government’s inability to respond to persecutorial harm where motivated to do so” and, therefore, t hat Parker’s app lication must fail becau se he did no t “prove that th e Jamaican govern ment is4

unwilling or unable to protect him from har m.” (Id.). We review the B oard’s decision under the su bstantial eviden ce test. Gao v. Ashcr oft , 299 F.3d 266, 272 (3d Cir. 2002). The pivotal issue here is whether substa ntial evidence on this record supports the determ ination that Parker did not prove that Jamaican authorities are u nwilling o r unable to p rotect him. The Board’s assessm

ent that the police can protect Parker was based on a lette r from police dete ctive Michael Ga rrick that was sup plied by Parker himself. Th e letter in pertinent part states: This serves to inform y

ou that I have known Oneil Parker of 18 Windward Road for the past six (6) months. Mr. Parke

r livesin a volat

ile ar ea in which gun crim

es are frequentl y c ommitted. Sometime bet

ween May

and June 2002, Pa

rker’scousin Ja

mes Br own was shot at resulting in th e arrest of three p ersons. Since th en there hav e been threats against the life o f Brown and his relatives. The fact tha t Parker is close to B rown [sic] he has been threatened sev eral times. It has reached th e extent that he r eported to me that h e is in fear of sleeping in h is co mmu ni ty. In additi on, people fr

om the c ommunity

is [sic ] accusing him of being a ho mo se xu al an d e xp re ss ed th at th ey d o n ot wa nt hi m i n t he co mmu ni ty. The police

is [sic ] offering prot

ection a nd have tri ed to get on t

op of the sit

uation but Parker does not feel comfortable. I was infor

med by his rel ativesthat he i s in the United Stat es of Ame

rica s eeking pol itica l asylum. I therefore forwar

d you t his inform

ation which I hope will

assis t with y

our investigation, please.5

(App. 270). The Board ’s reading of

the letter is perhap s overly sanguine. In f act, the letter is a mixed messag e. On the o ne h and , it su gge sts th at a g ood deal of P arke r’s p rob lem ste ms from hisinvolvem

ent in a police inve stigat

ion, rat her than hi s homose

xuality . On the other hand, against that background, the letter a ppears to demonstrate

only that individual police have tried unsuccessfully to help Parker, perhaps – as the Board acknowledged (App. 2) – because of his assistance in their investigation. We do not see the letter as strongly proba tive of the au thorities willing ness or ability to curb threa ts against Parker. There is consid erable eviden ce that virulent p rejudice ag ainst homosexu als exists in Ja mai ca. Repor

ts of Amne sty

Inte rnat ional – on which the B oard r

eli ed – not

e two incident s of misbehavior a gainst ga ysin police

custody , one of which wa s a 1997 pris on riot. Amnesty International also d escribed incide nts in which police have f ailed to
res pond to “inci dentsof homophobic viole nce” (App. 213-14, 231). An ext ensi ve new s article in the J amaica Gle aner in 2001 recounts that leaders of both major politica l parties found it advantageo us to emphasize their stro ng person al distaste for ho mosexuals. (App. 22 2-23). Th e record disclo ses a culture of anti-homosexu al violence that is d eeply ingrained, and reflected in popular songsthat urge violence against gay men. (App. 225- 26). And Parker himself relat ed that he was involved in an altercat ion that police seem

ed
no t t o t ak e v er y se ri ou sl y.On the other hand, stude

nts who engage d in gay

violence have face d expulsion (App. 23 3), and, as the 2 002 Co untry Report indicates, th e newly established Pub lic Defender’ s office ha s “str ongly criti cized vi olence t

argete d against

homosexua

ls.” (App. 203). Also , various go vernment agen cies have beg un prog rams designed to ed ucate police to respec t citizen’s rights. ( Id ). The questi on boils down to t his: Wa s there

substant ial evi dence tha

t the gover nment isnot una

ble or unwil ling t

o cont rol vi olenc e aga

inst gay s? Gao , 299 F.3d at 272. While the que stion isclose, under our defe rentia l standa rd of review we cannot conclude th at the Board’s c onclusion was unreaso nable. Altho ugh Jamaican soc iety evidentl y t akes a ha rsh view of hom

osexuality , there

is som e evidenc e – including Detective Garrick ’s letter – that off icials recognize th at violence ag ainst gays is unacceptab le. We cannot say that the Bo ard weighe d this eviden ce unreason ably. According ly, we will affirm the decision and deny the petition for review
.