Scarlett v. Barr ( 2020 )

16-940
Scarlett v. Barr
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 16-940
LESTON AUGUSTUS SCARLETT,
Petitioner-Appellant,
v.
WILLIAM P. BARR, United States Attorney General,
Respondent-Appellee.
On Appeal from the Board of Immigration Appeals
ARGUED: OCTOBER 30, 2019
DECIDED: APRIL 28, 2020
_____
Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, District
Judge. *
_____
*Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.
On a petition for review of a Board of Immigration Appeals
(“BIA”) decision upholding an order of removal, petitioner
challenges the denials of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture
(“CAT”). As to asylum, petitioner faults the BIA for not allowing him
to reopen proceedings to cure record deficiencies that he attributes to
the ineffective assistance of counsel and that he maintains show
extraordinary circumstances excusing the untimeliness of his asylum
application. As to withholding, petitioner argues that the agency
erred in finding that he failed to show a reasonable fear of persecution
from (1) former supervisors in the Jamaican police force, and (2)
criminal gang members. In particular, petitioner charges the agency
with legal error in assessing whether Jamaican authorities were
unwilling or unable to protect him from gang violence. Petitioner
similarly challenges the denial of CAT relief.
We identify no error in the agency’s rejection of petitioner’s
untimely asylum claim. We also identify no error in its denial of
withholding or CAT protection insofar as petitioner professes fear of
persecution and torture from former police supervisors. Insofar as he
seeks withholding and CAT protection based on feared persecution
and torture from gangs, however, the record does not permit us to
determine whether the agency considered all relevant evidence and
applied the correct legal standard. Accordingly, we vacate the
agency’s denials in this respect and remand for further proceedings
consistent with this opinion and with the Attorney General’s decision
in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018).
PETITION GRANTED; BIA DECISIONS AFFIRMED IN PART AND
VACATED AND REMANDED IN PART.
______________
2
HANNAH MILLER (Vilia B. Hayes, on the brief)
Hughes Hubbard & Reed LLP, New York, New
York for Petitioner.
LINDSAY M. MURPHY (Benjamin C. Mizer, Andrew
N. O’Malley, on the brief) United States Department
of Justice, Office of Immigration Litigation,
Washington, District of Columbia for Respondent.
REENA RAGGI, Circuit Judge:
Leston Augustus Scarlett is a Jamaican national and former
Jamaican police officer who petitions this court to review two
decisions of the Board of Immigration Appeals (“BIA”) that,
collectively, uphold Immigration Judge (“IJ”) orders directing
Scarlett’s removal from the United States and denying his requests for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). See In re Leston Augustus
Scarlett, No. A206 471 586 (B.I.A. June 11, 2015 & Mar. 8, 2016), aff’g
No. A206 471 586 (Immig. Ct. Batavia Oct. 23, 2015 & Feb. 5, 2015).
Insofar as Scarlett’s request for asylum was rejected as untimely, he
argues that the BIA erred in denying him leave to reopen based on
the ineffective assistance of former counsel in failing to demonstrate
that extraordinary circumstances excused the late filing. In
challenging the denials of withholding and CAT relief, Scarlett
charges the agency with legal error in concluding that he (1) lacked a
3
reasonable fear of future persecution 1 or torture in Jamaica from
former police supervisors and (2) failed to show that Jamaican
authorities were “unwilling or unable” to protect him from feared
violence by Jamaican gangs so as to charge the government itself with
persecution or torture.
We grant Scarlett’s petition for review and, upon such review,
we affirm the agency’s decisions to deny asylum without ordering
remand. We further affirm the agency’s denial of withholding and
CAT relief as to Scarlett’s professed fear of persecution or torture by
police supervisors. As to feared gang violence, however, the existing
record raises concerns as to whether the agency considered all
relevant evidence and applied the correct legal standards when it
rejected Scarlett’s claim that such violence equated to government
persecution or acquiescence in torture because Jamaican authorities
were unwilling or unable to protect him from gangs. We are mindful
that, at the time of the challenged decision, the agency did not have
the benefit of Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018),
1 The term “persecution,” used in authorizing claims for asylum, 8 U.S.C.
§ 1101(a)(42)(A), see id. § 1158(b)(1)(A)−(B)(i), is frequently also used to reference
the “threat” to “life or freedom” required to secure withholding of removal, id.
§ 1231(b)(3). See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (holding that
to show threat to life or freedom, alien seeking withholding must demonstrate “it
is more likely than not that [he] would be subject to persecution” in country of
removal (internal quotation marks omitted)); Paul v. Gonzales, 444 F.3d 148, 155 (2d
Cir. 2006) (stating that “withholding of removal . . . may only be requested on the
basis of a probability of future persecution”); Ivanishvili v. U.S. Dep’t of Justice, 433
F.3d 332, 339 (2d Cir. 2006) (observing that “concept of persecution inheres in the
analysis of both asylum and withholding of removal” claims). Thus, we use the
word “persecution” throughout this opinion in discussing Scarlett’s challenge to
the denial of his withholding claim.
4
which clarifies the “unwilling or unable” standard. Accordingly, we
vacate so much of the agency’s challenged decisions as deny Scarlett
withholding of removal and CAT protection based on gang
persecution and torture, and we remand the case for further
consideration of these claims consistent with this decision and Matter
of A-B-.
BACKGROUND
Petitioner Leston Augustus Scarlett is a citizen of Jamaica who,
for fifteen years, served as an officer of that country’s Constabulary
Force. Scarlett claims that fear of persecution by former police
supervisors and gang members prompted him to leave Jamaica and
enter the United States on July 9, 2010. Scarlett did not mention any
fear of persecution to United States authorities when he entered this
country on a B-2 non-immigrant visa, nor did he do so at any time
before his visa expired on January 8, 2011. Instead, Scarlett remained
in this country without authorization, coming to the attention of
federal immigration authorities only after being convicted in New
York in 2014 of disorderly conduct resulting from a domestic dispute.
See N.Y. Penal Law § 240.20(1). The Department of Homeland
Security (“DHS”) then charged Scarlett with removability under the
Immigration and Nationality Act (“INA”) § 237(a)(1)(B), see 8 U.S.C.
§ 1227(a)(1)(B), for having overstayed his visa. At the ensuing
immigration proceedings, Scarlett, through counsel, conceded
removability, but applied for relief in the form of asylum,
withholding of removal, and CAT protection.
5
I. Fear of Police Persecution
Scarlett sought such relief based on his professed fear of
persecution from former police supervisors if returned to Jamaica. To
explain that fear, Scarlett testified that in 2005, after already serving a
decade in the Jamaican Constabulary Force, he was assigned to a
special squad in Denham Town that investigated murders and
shootings. Scarlett testified that the squad leader, Superintendent
Delroy Hewitt, was corrupt, falsifying police reports to conceal
misconduct and using officers to perform contract murders. When,
in 2006, Hewitt asked Scarlett to perform such a contract murder, he
refused. 2
Thereafter, on two occasions—once in 2008, and again in
2009—Hewitt verbally abused Scarlett for taking suspects into
custody rather than killing them. The suspect Scarlett arrested in 2008
was a member of the Jamaican Labour Party (“JLP”), and Hewitt
accused Scarlett of not killing the suspect because of Scarlett’s own
support for that party.3 Hewitt made a similar accusation in
connection with the 2009 arrest. On that occasion, Hewitt and other
2In the absence of any adverse finding by the agency or challenge from the
government, we assume the credibility of Scarlett’s testimony. See 8 U.S.C.
§ 1158(b)(1)(B)(iii).
3 Hearing evidence—including a State Department Country Report—
indicated that Jamaica’s two major political parties, the JLP and the People’s
National Party (“PNP”), sometimes use gangs to further political aims. The gangs
most frequently affiliated with the JLP are the “Shower Posse” and the “One
Order”; the gang most frequently associated with the PNP is the “Spanglers.”
Scarlett testified that he has never been affiliated with any political party or even
voted in a Jamaican election.
6
squad members surrounded Scarlett as Hewitt told Scarlett that he
posed a danger to the entire squad. Scarlett testified that he began to
fear for his life, particularly because, the previous year, he had heard
squad members bragging about killing a police officer.
At about this time, Scarlett suspected that Hewitt was having
him surveilled. On two occasions Scarlett reported the suspected
surveillance by calling Jamaica’s emergency services number.
Responding police discovered that the occupants of the suspected
surveillance vehicle were, indeed, persons associated with Hewitt’s
squad, including another supervisor, “Harry J.,” all of whom denied
that they were following Scarlett.
In March of 2009, Scarlett requested, and was granted, a
transfer out of Hewitt’s squad. He was reassigned to the Guanaboa
Vale division, some 20 miles from Denham Town. He testified to no
further harassment or threats by police officials generally, or Hewitt
in particular.
II. Fear of Gang Persecution
Scarlett also sought withholding and CAT relief based on
feared gang violence. He testified that, after transfer to Guanaboa
Vale, he was threatened by gang members. The first incident
occurred after Scarlett seized firearms from the scene of an October
2009 shooting. Within days of the seizure, Scarlett observed a white
Toyota driving by his home. Scarlett identified the vehicle’s
occupants as members of the Shower Posse because they used certain
gang signs and the word “Shower” as they accused Scarlett of being
a “police boy” and threatened to kill him if he did not return their
guns.
7
The second incident happened a month later, in November
2009, after Scarlett shot and killed the leader of the One Order gang
in the course of responding to another shooting scene. Two days
later, Scarlett saw the same white Toyota approach his home. This
time the vehicle’s occupants not only verbally threatened Scarlett’s
life and home, but also fired a gunshot. Scarlett called emergency
services, but by the time police arrived, the car had left the scene.
Fearing for his and his family’s lives, Scarlett took his family
into hiding, staying for brief periods with various neighbors and
friends. When Scarlett sought police assistance, Superintendent
Aston Thompson told him there were “no resource[s]” to help him.
Admin. R. 1499−1500. Thompson did offer, however, to transfer
Scarlett to the Bog Walk police station, four miles away from
Guanaboa Vale. Scarlett accepted the transfer.
While assigned to Bog Walk, Scarlett experienced no direct
threats, but neighbors told him of people driving in and out of the
neighborhood asking as to the whereabouts of Scarlett and his family.
Then, one afternoon in January 2010, police intelligence officers
contacted Scarlett and told him that One Order gang members were
then en route both to his daughter’s school to kidnap the child and to
Scarlett’s home to shoot it up and set it on fire. Scarlett testified that
the police did not provide him with any assistance but, rather, told
him that he was “on [his] own.” Id. at 542. Scarlett promptly picked
up his children and never again sent them to school in Jamaica.
Instead, he and his family continued to hide while Scarlett sought
permission to leave Jamaica.
8
Scarlett testified that departure permission was required
because he was a police officer. He stated that permission was
initially denied because, in early 2010, Jamaica was then requiring all
members of its Constabulary to be available to assist in the
apprehension of notorious Shower Posse leader Christopher “Dudus”
Coke, whose extradition was then being sought by the United States. 4
Following Coke’s June 2010 arrest, Scarlett was granted permission to
leave Jamaica and, thus, arrived in the United States with his family
on July 9, 2010.
III. Events Following Scarlett’s Entry into the United States
As earlier noted, Scarlett did not seek asylum from United
States authorities upon entering this country or at any time while his
non-immigrant visa was in effect. Scarlett testified, however, that
approximately one month after arriving in the United States, he
contacted Catholic Charities in Manhattan, which helped him obtain
legal counsel to pursue an asylum application. Scarlett professed to
have been unaware that no timely application was ever filed on his
behalf. He never inquired into the matter because his attention was
then focused on various hardships resulting from his own reduced
economic circumstances and his wife’s cancer diagnosis. At some
point, the couple separated, with Scarlett moving to Illinois to live
4 Police arresting Coke encountered considerable armed resistance, and
some 73 civilians were killed in the ensuing shoot-out.
9
with his brother, while his wife and children resided in a different
state.
Scarlett testified that, sometime after the separation, he learned
that his wife was abusing their children and trafficking drugs. An
altercation between the couple resulted in Scarlett’s arrest and 2014
New York conviction for disorderly conduct. 5
Meanwhile, in 2013, Scarlett heard from a friend in Jamaica that
gang members were still looking for him in order to kill him.
IV. Removal Proceedings
On September 26, 2014, DHS charged Scarlett with
removability and served him with a Notice to Appear. Scarlett
complied and, through counsel, conceded removability but sought
relief in the form of asylum, withholding of removal, and CAT
protection.
By order dated February 5, 2015, the IJ rejected Scarlett’s
asylum application as time barred, explaining that he had failed to file
for that relief within one year of entering the United States as required
by the applicable statute of limitations, see 8 U.S.C. § 1158(a)(2)(B), or
to show “extraordinary circumstances” excusing his delay, id.§ 1158(a)(2)(D); see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330
(2d Cir. 2006).
5
Scarlett’s wife passed away in 2015, and Scarlett assumes (but does not
know) that his children are residing in Florida with his late wife’s brother.
10
The IJ also denied Scarlett withholding of removal. Insofar as
Scarlett sought such relief based on feared persecution by former
police supervisors, the IJ found that Scarlett failed to show past
persecution or a well-founded fear of future persecution by such
persons. Insofar as Scarlett sought such relief based on feared gang
persecution, the IJ found that any threat of harm was incidental to
Scarlett’s work as a police officer and not based on a protected
ground. See 8 U.S.C. § 1231(b)(3)(A) (identifying “race, religion,
nationality, membership in a particular social group, or political
opinion” as protected grounds); Matter of Fuentes, 19 I. & N. Dec. 658,
661 (B.I.A. 1988) (stating that “dangers the police face are no more
related to their personal characteristics or political beliefs than are the
dangers faced by military combatants”).
Similarly, the IJ denied Scarlett CAT relief because he failed to
demonstrate past torture, or that it was more likely than not that he
would be tortured with the acquiescence of the authorities if removed
to Jamaica. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a).
Proceeding pro se, Scarlett appealed to the BIA, arguing that he
had demonstrated feared persecution based on the protected ground
of political opinion because police supervisors targeted him based on
imputed political support for the JLP, while JLP-connected gangs
targeted him for imputed political support of the PNP. See Hernandez-
Chacon v. Barr, 948 F.3d 94, 104 (2d Cir. 2020) (recognizing that
“imputed political opinion, whether correctly or incorrectly
attributed,” can constitute ground of political persecution) (internal
quotation marks omitted)).
11
While his appeal was pending, Scarlett moved the BIA to
remand his case to the IJ for reopening so that he could cure the failure
of his former counsel to demonstrate that extraordinary
circumstances excused Scarlett’s belated asylum application.
In its June 11, 2015 decision, the BIA denied Scarlett’s motion to
reopen, finding that he failed to show prejudice from former counsel’s
alleged ineffectiveness. The BIA explained that the evidence Scarlett
faults counsel for omitting was largely duplicative of evidence
already in the record. In any event, Scarlett failed to demonstrate due
diligence in pursuing asylum, or to adduce corroborating evidence
for the extraordinary circumstances that he claims prevented him
from doing so, e.g., his late wife’s illness, abuse of their children, drug
dealing, and scheme to have him falsely arrested.
As for Scarlett’s appeal from the denial of withholding, the BIA
identified no clear error in the IJ’s finding that past verbal abuse and
surveillance attributed to Scarlett’s former police supervisors did not
rise to the level of persecution. With respect to feared gang
persecution, however, the BIA determined that remand was
necessary because, although the IJ had found that gangs did not target
Scarlett based on an imputed political opinion, the IJ had not
considered the possibility that Scarlett was targeted due to
membership in a particular social group based on the particular
circumstances of his employment as a police officer. See Admin. R.
1055 (citing Acharya v. Holder, 761 F.3d 289, 302 (2d Cir. 2014)
(discussing need to distinguish between “dangers commonly faced
by police,” as discussed in Matter of Fuentes, 19 I. & N. Dec. at 662, and
“political dimension” of petitioner’s particular police work)).
Further, the BIA directed the IJ, on remand, to determine whether the
12
Jamaican government was willing and able to control gangs in light
of record evidence about insufficient resources.
The BIA upheld the denial of Scarlett’s CAT claim, concluding
that he failed to demonstrate that, on removal, he would more likely
than not be tortured “by or with the acquiescence of a public official
or other person acting in an official capacity.” Id. at 1056. Rather, the
record showed that Jamaican police had “been responsive” to
Scarlett’s reports and “notified him when they became aware of
threats against him.” Id.
On remand, the IJ determined that Scarlett could not show a
well-founded fear of gang persecution based on membership in a
particular social group or on imputed political opinion because the
threats he received arose as a result of his performance of duties as an
active police officer. The IJ further rejected Scarlett’s claim that
Jamaican authorities were unwilling or unable to protect him,
observing that, in response to gang threats, authorities offered to
transfer Scarlett to the Bog Walk division, which Scarlett “did not
wish to do.” Id. at 316.
On appeal, the BIA upheld the IJ’s denial of withholding. In
doing so, the BIA declined to decide whether the particular
circumstances of Scarlett’s police employment warranted a departure
from Matter of Fuentes. Rather, the BIA concluded that, even if Scarlett
could establish past gang harm on account of a protected ground, he
was not entitled to withholding because he failed to prove that
13
Jamaican authorities were unwilling or unable to protect him from
such violence. The BIA specifically noted that police (1) “were able to
warn [Scarlett] about impending harm to his family,” and (2) “offered
to transfer him to another location.” Id. at 3.
V. Appeal to this Court
Still proceeding pro se, Scarlett timely appealed to this court,
challenging the BIA’s denial of (1) his motion to remand for further
consideration of his asylum claim, (2) withholding of removal based
on feared persecution by former police supervisors and Jamaican
gangs, and (3) CAT relief. Pro bono counsel, appointed by this court
to assist Scarlett, filed a supplemental brief challenging the agency’s
application of the unwilling-or-unable-to-protect standard to deny
Scarlett withholding. Amici curiae also address the unwilling-or-
unable standard.
DISCUSSION
The standards of review applicable to the issues on this appeal
are well established and can be stated briefly. We examine the BIA’s
denial of a motion to remand for reopening for abuse of discretion.
We will identify such abuse only if the Board’s decision inexplicably
departs from established policies or is so devoid of rational
explanation as to raise concern that it acted in an “arbitrary or
capricious manner.” Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149,
157 (2d Cir. 2005) (internal quotation marks omitted). In reviewing
denials of withholding claims under the INA or claims for relief under
the CAT, we apply the substantial evidence standard to the agency’s
factual findings, “which we will uphold unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Shunfu
14
Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008) (internal quotation
marks omitted); Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159
(2d Cir. 2005). At the same time, we review de novo all questions of
law, including the application of law to facts. See Pierre v. Gonzales,
502 F.3d 109, 113 (2d Cir. 2007); Yan Fang Zhang v. Gonzales, 452 F.3d
167, 171 (2d Cir. 2006). To the extent the BIA adopts the IJ’s reasoning
in denying relief, “we review the two decisions in tandem” in
applying these standards. Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009); see Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005).
I. Denial of Motion To Reopen
We identify no abuse of discretion in the BIA’s decision to deny
Scarlett remand to reopen his asylum claim. To the extent Scarlett
supported his motion by claiming that former counsel rendered
ineffective assistance before the IJ, the BIA correctly observed that
Scarlett was required by Matter of Lozada, 19 I. & N. Dec. 637, 639−40
(B.I.A. 1988), both to satisfy certain procedural requirements and to
demonstrate prejudice. The BIA found that Scarlett carried his
procedural burden, but he failed to demonstrate prejudice. The
record supports this conclusion.
To demonstrate prejudice, Scarlett had to make a prima facie
showing that, but for counsel’s ineffectiveness, “he would have been
eligible for [asylum] relief,” and “could have made a strong showing
in support of his application.” Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.
1994). He failed in both respects.
The agency determined that Scarlett was not eligible for asylum
because he failed to file for such relief within the applicable one-year
15
statute of limitations. See 8 U.S.C. § 1158(a)(2)(B). 6 In seeking
reopening, Scarlett maintained that he could have demonstrated
eligibility but for counsel’s failure to argue that extraordinary
circumstances excused the delayed filing. The BIA reasonably
rejected this argument, noting the total lack of corroboration for the
various domestic circumstances urged by Scarlett as extraordinary.
See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits or other evidentiary
material.”); Ajdin v. Bureau of Citizenship & Immigration Servs., 437 F.3d
261, 263 (2d Cir. 2006) (quoting Supreme Court’s recognition that
movant seeking to reopen immigration proceedings “bears a heavy
burden” akin to that of a criminal defendant moving for a new trial
on the basis of newly discovered evidence (quoting INS v. Abudu, 485
U.S. 94, 110 (1988))); see generally Wei Sun v. Sessions, 883 F.3d 23, 28
(2d Cir. 2018) (recognizing that “corroborating evidence may be
required in certain circumstances” including where applicant “fails to
put forth corroboration that should be readily available”).
Further, and in any event, the BIA reasonably concluded that
Scarlett failed to demonstrate his own diligence in pursuing asylum
6 While courts generally lack jurisdiction to review the agency’s finding
that an asylum application is untimely, they are empowered to review
constitutional claims such as Fifth Amendment challenges to the effective
representation of counsel. See Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d
Cir. 2009); Rabiu v. INS, 41 F.3d at 882 (explaining that, in immigration context,
ineffective assistance claims are analyzed under Fifth Amendment Due Process
Clause). Thus, we here consider timeliness only insofar as it informed the BIA’s
determination that Scarlett was not prejudiced by former counsel’s alleged
ineffectiveness on that matter.
16
within a “reasonable period given those circumstances.” 8 C.F.R.
§ 1208.4(a)(5); see Rashid v. Mukasey, 533 F.3d 127, 131−32 (2d Cir. 2008)
(stating that “no matter how egregiously ineffective counsel’s
assistance may have been, an alien will not be entitled to equitable
tolling unless he can affirmatively demonstrate that he exercised
reasonable due diligence in pursuing his claim . . . both before and
after he has or should have discovered [counsel’s] ineffective
assistance” (internal quotation marks omitted) (emphasis in
original)). It was not until four years after Scarlett entered the United
States, three years after his visa expired, and only after removal
proceedings were initiated against him, that Scarlett applied for
asylum. While he claims to have consulted with an attorney soon
after his arrival in the United States about filing for asylum, the record
shows that he made no effort to determine whether an application
had actually been filed on his behalf until charged with removal.
Nor was Scarlett able to demonstrate that, but for counsel’s
ineffectiveness, he could have made a strong showing in support of
asylum. As the BIA observed, the evidence Scarlett faults counsel for
omitting—a new copy of his declaration, the 2007 State Department
Country Report for Jamaica, and Reports from Amnesty International
and Freedom in the World—was sufficiently “similar to and
duplicative of” evidence already in the record and, thus, not likely to
have added significant support to his asylum claim. Admin. R. 1054.
The BIA having thus reasonably explained why Scarlett failed
to demonstrate prejudice from his attorney’s purported
ineffectiveness in urging extraordinary circumstances to excuse his
delayed asylum filing, we conclude that the BIA acted within its
17
discretion in denying Scarlett’s motion to remand his case for
reopening.
II. Withholding of Removal
Subject to exceptions not relevant here, the INA states that an
alien may not be removed “if the Attorney General decides that the
alien’s life or freedom would be threatened in [the country of
removal] because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). Thus, “[t]o establish . . . eligibility for withholding of
removal, . . . an applicant must show that it is more likely than not
that he would suffer [such] future persecution if returned to the
country of removal.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 141
(2d Cir. 2008) (internal quotation marks and alterations omitted); see
8 C.F.R. § 1208.16(b)(2). The withholding standard is “concerned only
with objective evidence of future persecution”; it has no “subjective
component.” Paul v. Gonzales, 444 F.3d 148, 155–56 (2d Cir. 2006).
Nevertheless, “[a] rebuttable presumption of withholding eligibility
attaches to an applicant who demonstrates that [he] suffered past
persecution based on one of the enumerated grounds.” Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 105 (2d Cir. 2006).
To qualify as “persecution” the conduct at issue must be
attributable to the government, whether directly because engaged in
by government officials, or indirectly because engaged in by private
persons whom the government is “unable or unwilling to control.”
Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015); Rizal v. Gonzalez, 442
F.3d 84, 92 (2d Cir. 2006) (“[P]ersecution can certainly be found when
the government, although not itself conducting the persecution, is
18
unable or unwilling to control it.”). Scarlett claims to have an
objectively reasonable fear of future persecution if removed to
Jamaica because he suffered past persecution both directly from
former police supervisors and indirectly from Jamaican gangs that the
government was unwilling or unable to control. We uphold the
agency’s denial of withholding on the first basis, but we conclude that
the second requires remand for further consideration.
Scarlett testified that he suffered past persecution from former
police supervisors after refusing to participate in a contract murder
and reporting unlawful police behavior. Specifically, Scarlett
complains of verbal harassment and visual surveillance that he
understood implicitly to threaten his life. Even crediting this
testimony, the agency was not compelled to find past persecution. As
this court has observed, “[u]nfulfilled” threats alone generally do not
rise to the level of persecution. Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d
408, 412–13 (2d Cir. 2006). To warrant a different conclusion, an
applicant must adduce objective evidence that the threat was so
“‘imminent or concrete,’” id. (quoting Zhen Hua Li v. Att’y Gen., 400
F.3d 157, 165 (3d Cir. 2005)); or “‘so menacing’” as itself to cause
“‘actual suffering or harm.’” id. at 413 (quoting Lim v. INS, 224 F.3d
929, 936 (9th Cir. 2000)). The absence of any such evidence here is
itself substantial evidence supporting the agency’s finding that
Scarlett did not demonstrate actual past persecution by police
supervisors. See Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008)
(“[W]hen a petitioner bears the burden of proof, his failure to adduce
evidence can itself constitute the substantial evidence necessary to
19
support the agency’s challenged decision.” (internal quotation marks
omitted)).
Because Scarlett failed to demonstrate past persecution, he was
entitled to no presumption of future persecution. The agency
reasonably concluded that the record did not otherwise support an
objective fear of future persecution. Scarlett himself testified that his
request to transfer out of Hewitt’s squad in Denham Town was
granted. He was reassigned to Guanaboa Vale, 20 miles away, where
he worked for different supervisors without any difficulty.
Moreover, in the year between that transfer and Scarlett’s departure
for the United States, he experienced no further problems from
Hewitt, Harry J., or any other former supervisors, making it
objectively unlikely that he would do so if removed to Jamaica more
than a decade later. While Scarlett testified that Hewitt was
subsequently disciplined and reassigned for misconduct of the sort
ascribed to him by Scarlett, that did not compel the agency to find it
objectively probable that Hewitt would persecute Scarlett if he were
removed to Jamaica a decade later. See Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (characterizing asserted fear of future
persecution lacking “solid support” in record as “speculative at
best”).
In sum, because Scarlett’s professed fear of future persecution
from former supervisors lacks any support in objective evidence, the
agency committed no error in denying him withholding on this
ground.
20
Scarlett testified to past persecution by Jamaican gangs after his
transfer to Guanaboa Vale. As detailed supra at 7−8, on two
occasions—the first after Scarlett seized guns at the scene of a gang
shootout, and the second after Scarlett, in the line of duty, killed the
leader of the One Order gang—members of the Shower Posse gang
drove by Scarlett’s home, shouting that he was a “police boy” and not
a “laborite,” i.e., not a supporter of the JLP, and threatening to kill him
and burn down his home. Admin. R. 1497. On the second occasion,
a gunshot was fired. After Scarlett was transferred to Bog Walk,
police intelligence officers warned him that One Order gang members
were, that same day, planning to kidnap Scarlett’s daughter from
school and to shoot up and burn down his home.
The IJ decided that these circumstances did not warrant
withholding because (1) the gangs targeted Scarlett based on his
performance of police duties and not a protected ground,7 and (2)
Scarlett had failed, in any event, to show that Jamaican authorities
were unwilling or unable to protect him. In upholding the decision,
the BIA did not review the first reason but, rather, assumed its
resolution in Scarlett’s favor. Nevertheless, the BIA concluded that
the second reason alone warranted denial of withholding. Thus, that
reason is the singular focus of our review. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005) (explaining that BIA opinion provides
7 Initially, the IJ rejected Scarlett’s claim that gangs targeted him based on
an imputed political opinion. See supra at 12–13. On remand, the IJ concluded that
Scarlett had not been targeted based on membership in a cognizable social group
of police officers with particular work experience. See id. at 13.
21
basis for judicial review); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d
188, 191 n.4 (2d Cir. 2005) (holding that where BIA affirms based on
one ground of IJ decision, without relying on alternative, error in
latter does not provide ground for reversal or vacatur).
We identify two concerns with the agency’s unwilling-or-
unable determination: (1) whether it considered all relevant evidence,
and (2) whether it applied the correct legal standard.
1. Relevant Evidence
“Despite our generally deferential review of IJ and BIA
opinions,” we require “a certain minimum level of analysis” to allow
for meaningful judicial review. Poradisova v. Gonzales, 420 F.3d 70, 77
(2d Cir. 2005); see Gashi v. Holder, 702 F.3d 130, 138 (2d Cir. 2012).
While the IJ and BIA need not “expressly parse or refute on the record
each . . . piece of evidence offered by the petitioner,” there must be
some indication of “reasoned consideration” and “adequate
findings.” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007)
(internal quotation marks omitted); see, e.g., Yan Chen v. Gonzales, 417
F.3d at 272−73; Tian-Yong Chen v. INS, 359 F.3d 121, 128−29 (2d Cir.
2004) (vacating and remanding where BIA failed to consider
petitioner’s testimony that he had been beaten).
Applying these principles here, we note that the BIA concluded
that two pieces of evidence defeated Scarlett’s claim that authorities
were unwilling or unable to protect him from gang violence: “the
police [1] were able to warn [Scarlett] about impending harm to his
family and [2] offered to transfer him to another location.” Admin. R.
3. Such evidence may have sufficed to support an agency finding that
Scarlett failed to show that Jamaican police were “unwilling” to
22
protect him from gang violence, but it provided little insight as to
their ability to do so. See Rosales Justo v. Sessions, 895 F.3d 154, 163 (1st
Cir. 2018) (recognizing willingness and inability as distinct issues);
Zelaya de Ceron v. Lynch, 648 F. App’x 78, 79–80 (2d Cir. 2016)
(remanding because agency failed to consider evidence that
government had little control over gangs); Madrigal v. Holder, 716 F.3d
499, 506 (9th Cir. 2013) (identifying error where BIA “focused only on
. . . government’s willingness to control [gang], not its ability to do so”
(emphasis in original)); Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir.
2005) (explaining that while one “cannot even claim asylum on the
basis of persecution by a private group unless the government either
condones it or is helpless to prevent it, . . . if either of those conditions
is satisfied, the claim is a good one”).
In determining whether Scarlett satisfied the “unable” prong of
the unwilling-or-unable standard, the agency needed to consider
Scarlett’s testimony that, although police warned him that his
daughter was about to be kidnapped, they told him that he was “on
[his] own” in protecting against the threat, and provided him with no
assistance either in retrieving the child or finding a safe home for the
family. Admin. R. 542. In fact, Scarlett’s children never returned to
school in Jamaica, and he and his family lived in hiding for several
months until he was given permission to leave the country. None of
these facts—all pertinent to whether Jamaican authorities, however
willing, were nevertheless unable to protect Scarlett from gang
violence—are mentioned in any of the various agency decisions.
Moreover, in citing the transfer offer as evidence of police
willingness and ability to protect Scarlett, the agency nowhere
mentions that Scarlett’s Guanaboa Vale supervisor told him transfer
23
was the only thing police could do to protect him from gang violence.
It was after—i.e., despite—Scarlett’s transfer from Guanaboa Vale to
Bog Walk that gang members threatened to kidnap his daughter and
burn his home. In short, it was after transfer proved ineffective in
deterring gangs from targeting Scarlett that police told him he was on
his own in responding to gang threats.
Reinforcing our concern with the agency’s “reasoned
consideration” of the totality of relevant evidence is the fact that the
BIA, in rejecting Scarlett’s claim that Jamaican police “did not have
adequate resources to provide him protection,” cited a single page of
the IJ’s decision to conclude that “the facts of the respondent’s claim
prove otherwise (I.J. 12).” Admin. R. 3 (stating that IJ’s “finding in that
regard is not clearly erroneous”). But the only pertinent “facts”
referenced by the IJ on the cited page relate to the offered transfer to
Bog Walk, which, as just indicated, proved insufficient to safeguard
Scarlett and his family from threats of imminent gang harm.
Moreover, the IJ may have mistakenly understood Scarlett to have
rejected this transfer offer because he stated: “it does appear that the
respondent was offered the opportunity to transfer to the [Bog Walk]
division, which the respondent did not wish to do.” Id. at 315–16
(emphasis added). Insofar as the BIA opinion refers only to an
“offer[]” of transfer, the misunderstanding may have persisted on
appeal, particularly as the BIA does not acknowledge that the threat
to kidnap Scarlett’s child and burn his home occurred after actual
transfer.
In sum, because we cannot conclude from the existing record
that the agency gave reasoned consideration to all the facts relevant
to assessing Scarlett’s claim that Jamaican authorities were unable to
24
protect him from gang violence, we must remand for further
proceedings.
2. Applicable Law
Scarlett further argues that the agency misapplied the law in
reviewing his claim for withholding based on feared gang violence.
We address those arguments to the extent necessary to provide the
agency with adequate guidance on remand.
With no citation to supporting authority, Scarlett argues that
the unwilling-or-unable standard is inapplicable to his withholding
claim because Jamaican “gangs are so intertwined with the [nation’s]
political parties” that their members are government actors. Pro Bono
Br. at 38. The argument fails. First, it is by no means evident from the
record that Jamaica’s political parties equate to the Jamaican
government, the necessary predicate for Scarlett’s argument. In any
event, a close relationship between government officials and private
persons may be probative of the formers’ unwillingness or inability
to control the latter, but the relationship alone does not transform the
private persons into government actors. Thus, we conclude that the
agency correctly recognized that for Scarlett to secure withholding
based on feared gang violence he had to show that Jamaican
authorities were unwilling or unable to control the gangs or to protect
Scarlett from their violence.
As for Scarlett’s legal challenges to how the agency applied the
unwilling-and-unable standard to the facts of his case, we need not
here decide which, if any, of these challenges has merit because, on
remand, we expect the agency review to be conducted according to
25
the unwilling-or-unable standard as now clarified by the Attorney
General in Matter of A-B-, 27 I. & N. Dec. 316. 8
The Attorney General there explained that “‘[p]ersecution is
something a government does,’ either directly or indirectly by being
unwilling or unable to prevent private misconduct.” Id. at 337(quoting Hor v. Gonzales, 400 F.3d at 485 (emphasis in Hor)). Violence
committed by non-government actors “[g]enerally . . . will not
qualify” as persecution warranting relief from removal. Id. at 320
(making point with respect to “domestic violence or gang violence”).
To warrant a different conclusion under the unwilling-or-unable
standard, “[a]n applicant seeking to establish persecution based on
[the] violent conduct of a private actor . . . must show that the
government [1] condoned the private actions or [2] ‘at least
demonstrated a complete helplessness to protect the victims.’” Id. at
337 (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)). As this
formulation makes plain, the unwilling-or-unable standard requires
an applicant to show more than government failure to “act[] on a
particular report of an individual crime,” or “‘difficulty . . .
controlling’ private behavior.” Id. (quoting Menjivar v. Gonzales, 416
F.3d 918, 921 (8th Cir. 2005) (quoting Matter of McMullen, 17 I. & N.
8 The Attorney General’s ruling was issued pursuant to authority
conferred by 8 U.S.C. § 1103(a)(1) (stating that vis-à-vis DHS Secretary’s
administration and enforcement of all laws relating to immigration and
naturalization, “ruling by the Attorney General with respect to all questions of law
shall be controlling”); see also 8 C.F.R. § 1003.1(g)−(h)(1)(i).
26
Dec. 542, 546 (B.I.A. 1980))). 9 The Attorney General observed that
“[t]here may be many reasons why a particular crime is not
successfully investigated and prosecuted.” Id. And no country, not
even our own, “provides its citizens with complete security from
private criminal activity.” Id. at 343. Thus, to demonstrate
persecution based on private party violence, an alien must show
either that the government condoned the action or, even if it did not,
that it was completely helpless to protect the victims. Id. at 337.
It is “well settled” that principles of Chevron deference apply to
the Attorney General’s interpretation of the INA. Negusie v. Holder,
555 U.S. 511, 516 (2009) (citing Chevron, USA, v. Nat. Res. Def. Council,
467 U.S. 837, 842−43 (1984)). As the Supreme Court has explained,
such “judicial deference to the Executive Branch is especially
9
For this reason, the Attorney General observed that claims for relief from
removal based on feared domestic or gang violence would be unlikely to satisfy
the unwilling-or-unable standard:
Generally, claims by aliens pertaining to domestic violence or gang
violence perpetrated by non-governmental actors will not qualify
for asylum. While I do not decide that violence inflicted by non-
governmental actors may never serve as the basis for an asylum or
withholding application based on membership in a particular social
group, in practice such claims are unlikely to satisfy the statutory
grounds for proving group persecution that the government is
unable or unwilling to address. The mere fact that a country may
have problems effectively policing certain crimes—such as
domestic violence or gang violence—or that certain populations are
more likely to be victims of crime, cannot itself establish an asylum
claim.
Id. at 320.
27
appropriate in the immigration context where officials exercise
especially sensitive political functions that implicate questions of
foreign relations.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)
(internal quotation marks omitted); accord Pierre v. Gonzales, 502 F.3d
at 116. In Aguirre-Aguirre, the Court was speaking of a “decision by
the Attorney General to deem certain violent offenses committed in
another country as political in nature, and to allow the perpetrators
to remain in the United States.” INS v. Aguirre-Aguirre, 526 U.S. at
425. But the Court’s instruction applies with equal force here where
the Executive is deciding when private misconduct will be
denominated persecution by a foreign country’s own government, a
matter of no small significance to foreign relations.
Scarlett, nevertheless, argues that Matter of A-B- is not entitled
to Chevron deference because the word “persecution” is
unambiguous, and the Attorney General’s interpretation of that word
to require a showing of “complete helplessness to protect” is
unreasonable in any event. See Pro Bono Br. at 28−31. Neither
argument persuades.
As this court has recognized, the word “persecution” is subject
to various definitions and, thus, sufficiently ambiguous to benefit
from Attorney General clarification. See Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 340−41 (2d Cir. 2006) (collecting cases defining
“persecution” in different ways). In any event, what the Attorney
General clarifies in Matter of A-B- is not the severity of conduct
constituting persecution, but a still more ambiguous aspect of that
statutory term, i.e., when private-party violence can be attributed to
the government as its own “persecution” because of an unwillingness
or inability to control it.
28
As for the reasonableness of that clarification, Scarlett suggests
that the “complete helplessness to protect” formulation is a new,
heightened requirement for the second prong of the “unwilling or
unable” standard. It is not new. The formulation is well grounded in
circuit precedents, not only the Seventh Circuit’s decision in Galina v.
INS, 213 F.3d at 958, expressly quoted in Matter of A-B-, 27 I. & N. Dec.
at 337, but also Saldana v. Lynch, 820 F.3d 970, 977 (8th Cir. 2016) (“[A]
government that is ‘unable’ to control criminal activity cannot mean
anything and everything short of a crime-free society; the standard is
more akin to a government that has demonstrated ‘complete
helplessness’ to protect victims of private violence.” (collecting
cases)); and Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006)
(holding that private violence “cannot be labeled ‘persecution’ absent
some proof” that government “condoned it or at least demonstrated
a complete helplessness to protect the victims” (internal quotation
marks omitted)).
Nor does the formulation impermissibly heighten an
applicant’s burden. Insofar as Scarlett argues that Matter of A-B-
requires an alien to demonstrate more than a well-founded fear of
persecution to secure relief from removal, he conflates two inquiries.
One asks whether the applicant’s fear is well founded. The other asks
whether what he fears is properly denominated “persecution.” It is
when an applicant’s well-founded fear pertains to private violence
that his ability to claim persecution depends on showing that the
government is unwilling or unable to protect him against that
violence. That burden did not arise with Matter of A-B-. See Matter of
Acosta, 19 I. & N. Dec. 211, 222−23 (B.I.A. 1985) (discussing how
“persecution” had long been understood to include harm or suffering
29
inflicted either by government or by entity that government was
“unable or unwilling to control”). Rather, Matter of A-B- clarifies how
to identify when a government is unwilling or unable to control
private violence.
In reaching this conclusion, we join the Fifth Circuit, which also
recently rejected an arbitrariness challenge to the Attorney General’s
clarification of the unwilling-or-unable standard in Matter of A-B-. See
Gonzales-Veliz v. Barr, 938 F.3d 219, 233 (5th Cir. 2019). That court
noted not only that a number of sister circuits already treated such a
formulation as interchangeable with the standard, see id. (citing cases
from Fifth, Seventh, and Eighth Circuits); see supra at 29, but also that
the two serve “the same purpose: to show that an alien’s home
government has more than difficulty . . . controlling private
behavior.” Id. (internal quotation marks omitted). We agree.
In Matter of A-B-, the Attorney General instructs that “more
than difficulty” can be identified in evidence that government
officials “condone” the private violence, however tacitly. Implicit in
a government’s condoning of private violence is its unwillingness to
control or protect against it, satisfying the first prong of the unwilling-
or-unable standard. But even where the government does not
condone private violence—indeed, even when it condemns it—Matter
of A-B- clarifies that “more than difficulty” can still be identified in
evidence of a government’s “complete helplessness” to protect
against the violence. The “complete helplessness” formulation thus
ensures that a government is not charged with persecution for failing
to provide a particular standard of protection, or for lapses in
protection. At the same time, it serves to identify as persecutors
governments that are actually unable to protect persons against
30
private violence, thus satisfying the second prong of the “unwilling
or unable” standard.
In urging otherwise, Scarlett relies on Grace v. Whitaker, 344 F.
Supp. 3d 96 (D.D.C. 2018). Like the Fifth Circuit, we cannot agree
with that case’s reading of Matter of A-B-. See Gonzales-Veliz v. Barr,
938 F. 3d at 228. Specifically, we cannot agree with its conclusion that
“no asylum applicant who received assistance from the government,
regardless of how ineffective that assistance,” could satisfy Matter of
A-B-’s “complete helplessness” formulation. Grace v. Whitaker, 344 F.
Supp. 3d at 129. A government that can offer its citizens only
ineffective assistance is a government unable to protect them. Thus,
nothing in Matter of A-B-’s “complete helplessness” formulation will
foreclose aliens whose governments told them “we can’t protect you,”
Hor v. Gonzales, 421 F.3d at 502; or offered them only ineffective
assistance, see Galina v. I.N.S., 213 F.3d at 958, from demonstrating
persecution under the unwilling-or-unable standard. See also Rosales
Justo v. Sessions, 895 F.3d at 166 n.9 (locating no departure from First
Circuit precedent in Matter of A-B-’s treatment of unwilling-or-unable
standard).
Accordingly, on remand, the agency should reconsider
Scarlett’s claim that Jamaican authorities were unable to protect him
from gang violence by reference to the totality of the evidence
consistent with this opinion and the Attorney General’s decision in
Matter of A-B-.
III. CAT Relief
Under Article 3 of the CAT, an alien cannot be removed “to a
country where he more likely than not would be tortured by, or with
31
the acquiescence of, government officials acting in an official
capacity.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d at 159.
“Torture” is “an extreme form of cruel and inhuman treatment,” 8
C.F.R. § 1208.18(a)(2), not incident to lawful sanctions, see id.§ 1208.18(a)(3), and “specifically intended to inflict severe physical or
mental pain or suffering,” id. § 1208.18(a)(5). Scarlett argues that the
BIA erred in denying him CAT relief based on the likelihood that he
would be tortured by former supervisors or gang members if
removed to Jamaica.
As to former supervisors, Scarlett’s CAT claim merits little
discussion. It fails for much the same reason as his parallel
withholding claim because both rest on the same factual predicate.
The same substantial evidence that supports the agency’s finding that
Scarlett failed to demonstrate a well-founded fear of persecution by
former supervisors, see supra at 19–20, supports its finding that he
failed to demonstrate likely torture by such officials. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d at 523 (upholding denial of CAT
relief based on same factual predicate as failed asylum and
withholding claims).
As to gang violence, Scarlett’s CAT claim depends on his
demonstrating government acquiescence in likely torture. This court
has stated that acquiescence is demonstrated by evidence that
“government officials know of or remain willfully blind to an act [of
torture] and thereafter breach their legal responsibility to prevent it.”
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004); see 8 C.F.R.
§ 1208.18(a)(7). Acquiescence is distinct from the specific intent
required of the torturer himself. See Pierre v. Gonzales, 502 F.3d at 118(explaining “private actor’s behavior can constitute torture under the
32
CAT without a government’s specific intent to inflict it if a
government official is aware of the persecutor’s conduct and intent
and acquiesces in violation of the official’s duty to intervene”
(emphasis in original)).
In rejecting Scarlett’s CAT claim, both the IJ and BIA concluded
that Scarlett could not show government acquiescence in threatened
gang torture because the police (1) offered Scarlett a transfer from
Guanaboa Vale to Bog Walk, and (2) alerted Scarlett to gang threats
against his family in time for Scarlett to respond. See Admin. R.
315−16, 1056. Two omissions preclude us from determining whether
this analysis reflects reasoned consideration of Scarlett’s CAT claim.
First, nowhere in the agency opinions do the IJ or BIA address
what “legal responsibility” Jamaican authorities had to protect a
serving police officer threatened with gang violence. Because it was
Scarlett’s burden to demonstrate acquiescence, it may well have been
incumbent on him to show that police bore a legal responsibility to do
more than transfer him to a different police location or warn him of
imminent gang threats even after transfer. 10 Nevertheless, on the
existing record, we cannot discern whether the agency found that
Scarlett failed to carry his burden on the point of legal responsibility,
or whether it failed to apply this part of the acquiescence standard all
together.
10 As noted supra at 24, the record suggests that the agency may have
mistakenly thought Scarlett rejected the offered transfer and overlooked the fact
that the threat to his family came after that transfer.
33
Second, the agency did not indicate how, if at all, evidence that
Jamaican authorities were “unable” to fulfill their legal responsibility
of protection might inform a determination about their
“acquiescence” in threatened torture. As noted supra at 22–31, we
cannot conclude from the record that the agency gave reasoned
consideration to the issue of inability to protect, even with respect to
Scarlett’s withholding claim. In the CAT context, the Sixth Circuit has
held that the fact that a “government is unable to control the gangs”
threatening an applicant for CAT relief “does not constitute
acquiescence.” Zaldana Menijar v. Lynch, 812 F.3d 491, 502 (6th Cir.
2015). By contrast, the Third Circuit recently indicated that
government inability to protect, while not dispositive of acquiescence,
nevertheless did not foreclose such a finding. See Quinteros v. Attorney
Gen., 945 F.3d 772, 788 (3d Cir. 2019) (“[A]lthough not dispositive of
whether a government acquiesced in torture through willful
blindness, [a CAT] applicant may be able to establish governmental
acquiescence in some circumstances, even where the government is
unable to protect its citizens from persecution.” (internal quotation
marks omitted)). In De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010),
this court suggested only that a government’s inability to protect does
not necessarily preclude a finding of acquiescence. But in that case,
the evidence showed that, although some police officers endeavored
to protect De La Rosa from torture, other officers were actually
complicit in the scheme. It was in that context that this court stated,
Where a government contains officials that would be
complicit in torture, and that government, on the whole,
is admittedly incapable of actually preventing that
torture, the fact that some officials take action to prevent
the torture would seem neither inconsistent with a
34
finding of government acquiescence nor necessarily
responsive to the question of whether torture would be
“inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity.”
Id. at 110 (quoting Article 1, 1465 U.N.T.S. 85 (CAT), and citing 8
C.F.R. § 208.18).
In none of these cases, however, did the courts consider, much
less decide, how the “unable” prong of the unwilling-or-unable
standard, as applicable to withholding claims, might translate to
identifying government acquiescence in torture under the CAT. We
think that question is best left to the agency on remand, which can
consider it with the benefit of the Attorney General’s guidance in
Matter of A-B-. See Negusie v. Holder, 555 U.S. at 517 (“When the BIA
has not spoken on a matter that the statutes place primarily in agency
hands, our ordinary rule is to remand to give the BIA the opportunity
to address the matter in the first instance in light of its own expertise”
(internal quotation marks omitted)); Shu Ling Ni v. Board of
Immigration Appeals, 439 F.3d 177, 180 (2d Cir. 2006) (remanding for
“agency to consider, in the first instance, whether petitioners should
be afforded relief from removal under the CAT”).
We here conclude only that, as with Scarlett’s withholding
claim, we must remand his CAT claim as it pertains to threatened
torture by Jamaican gangs because we cannot conclude on the existing
record that the agency gave reasoned consideration to all relevant
evidence and all principles of law applicable to determining
government acquiescence in such torture.
35
CONCLUSION
To summarize, we conclude as follows:
(1) The BIA did not abuse its discretion in not allowing Scarlett
to reopen his asylum proceedings based on former counsel’s
ineffectiveness in arguing that extraordinary circumstances
excused the late asylum filing. The BIA reasonably
concluded that Scarlett failed to show prejudice because no
corroborating evidence supported the claimed
extraordinary circumstances, much of the omitted evidence
was duplicative of matters already in the record, and
Scarlett could not demonstrate his own due diligence in
pursuing asylum.
(2) The agency’s decision to deny Scarlett withholding and
CAT relief based on the conduct of former police
supervisors is supported by substantial evidence that the
past conduct did not rise to the level of “persecution,” much
less “torture,” and there was no objective reason to fear
likely future persecution or torture by such supervisors
upon removal.
(3) The agency correctly recognized that Scarlett’s entitlement
to withholding based on gang violence depended on his
showing that government authorities were unwilling or
unable to protect him from such violence. Similarly, his
entitlement to CAT relief on that basis depended on his
showing government acquiescence in gang torture.
Evidence of close connections between Jamaican gangs and
political parties might inform the application of these
36
standards, but it does not relieve Scarlett of his obligation to
satisfy them.
(4) On the existing record, we cannot conclude that the agency
gave reasoned consideration to all relevant evidence of
Jamaican authorities’ inability to protect Scarlett from gang
violence. Nor can we determine whether the agency applied
the correct legal standard to that consideration in denying
Scarlett both withholding and CAT relief. Thus, remand is
necessary for further consideration of these claims.
(5) Insofar as the “unwilling or unable” standard applicable to
Scarlett’s withholding claim based on gang violence has
recently been clarified by the Attorney General in Matter of
A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018), we direct the
agency to apply that decision on remand, and we reject
Scarlett’s challenge to it. We do not decide whether Matter
of A-B- might also inform a determination of whether
Jamaican authorities acquiesced in gang torture, leaving
that question to be considered, in the first instance, by the
agency.
Accordingly,
(1) We GRANT Scarlett’s petition for review of the challenged
agency decisions;
(2) We AFFIRM the agency’s denial of Scarlett’s motion to
remand for reopening of his asylum claim;
(3) We further AFFIRM the agency’s denials of withholding of
removal and CAT relief insofar as those claims relate to
Scarlett’s fear of his former supervisors in the Jamaican
Constabulary Force;
37
(4) We VACATE the agency’s denials of withholding of
removal and CAT relief insofar as those claims relate to
feared gang violence; and
(5) We REMAND for further consideration consistent with this
opinion and Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen.
2018).
38