Grant v. Attorney Gen.
| Decision Date | 20 April 2022 |
| Docket Number | 21-1281 |
| Parties | MICHAEL MOSES GRANT, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted Under Third Circuit L.A.R. 34.1(a) on April 12 2022.
On Petition for Review of a Decision of Board of Immigration Appeals, (Agency No. A215-928-191) Immigration Judge: Alice Song Hartye
Before: AMBRO, SCIRICA, and TRAXLER, Circuit Judges[*]
Michael Grant ("Grant") petitions for review of the final order of the Board of Immigration Appeals ("BIA") denying his applications for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). Finding no factual or legal error in the agency decisions, we will deny the petition.
Grant is a native and citizen of Jamaica. In 2016, he entered the United States on a B-2 visitor's visa and overstayed. In March 2019, Grant was stopped by a state trooper for driving 95 m.p.h. on the Pennsylvania Turnpike. Grant was accompanied by a passenger, Kerron Taylor ("Kerron"). The state trooper found a backpack containing approximately one pound of marijuana and numerous folded packets of U.S. currency in the vehicle. Both men were arrested and prosecuted. Grant ultimately pled guilty in state court to possession of marijuana and driving under the influence of marijuana.
In March 2020, the Department of Homeland Security ("DHS") charged Grant with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States for a time longer than permitted by his visitor visa. In April 2020, DHS filed additional charges of removability under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien who had been convicted of a controlled substance offense. Through counsel, Grant conceded removability based upon his overstaying his visa, but contested removability based upon his criminal offenses. The immigration judge ("IJ") sustained both charges of removability and designated Jamaica as the country of removal. Grant was advised to submit any applications for relief from deportation by May 5, 2020. At the hearing on May 5, however, Grant requested and was granted a two-week continuance to file his application to allow him to obtain supporting documentation for his claim.
On May 19, 2020, Grant filed his Form I-589 application for asylum, withholding of removal, and protection under the CAT, asserting a single claim. Grant claimed that Kerron was a high-ranking member of the "mafia gang" in Jamaica, and that he had heard rumors in jail that Kerron labeled him a "snitch" because Grant refused Kerron's request that Grant take sole responsibility for the marijuana found during the March 2019 traffic stop. Grant also claimed that his family members in Jamaica had informed him of rumors that his brother had been murdered in May 2019 by the mafia gang because of Grant's refusal. Grant claimed that he would be persecuted and/or tortured as a "snitch" by the mafia gang if he were deported to Jamaica. The IJ set a deadline for submission of all evidence by June 30, 2020, a deadline for responses by July 10, 2020, and a hearing date of July 15, 2020.
On June 30, 2020, well beyond the filing deadline for his I-589 application, Grant raised a second claim for relief from deportation, asserting that he had been persecuted and tortured by the Jamaican police in 2009 and 2016 due to his sexual orientation as a bisexual man. Grant requested a continuance of the scheduled hearing to obtain and submit evidence in support of this new claim. The IJ found that Grant had failed to demonstrate good cause for a continuance of the scheduled hearing but extended the deadline to allow Grant to submit additional evidence until July 8, 2020.
On July 15, 2020, the IJ held an evidentiary hearing on the merits of Grant's application for relief, at which Grant's testimony was taken. The IJ subsequently issued a written decision denying all claims for relief.
Regarding Grant's claim for asylum and withholding of removal based upon his fear of future persecution by the mafia gang, the IJ found Grant's testimony to be credible insofar as it related to the fact that his brother had been murdered and that he had a subjective fear of the gang. However, the IJ concluded that Grant had failed to meet his burden of proving an objectively reasonable, well-founded fear of future persecution because the claim was based solely upon Grant's speculative testimony about uncorroborated rumors related to him by others. In the alternative, the IJ found that Grant's purported social group of "Jamaican males who are deemed to be 'snitches' by quasi-governmental criminal organizations" lacked the requisite particularity for asylum relief. Moreover, Grant had failed to establish that his membership in this alleged social group would be one central reason for his feared persecution. The IJ also found that, even if Grant had established his statutory eligibility for asylum relief, the application would be denied as a matter of discretion.
Regarding Grant's newly asserted claim for asylum and withholding of removal based upon his sexual orientation and his prior experiences in Jamaica, the IJ found Grant's testimony vague, incredible, and implausible. In addition, the IJ concluded that Grant had failed to corroborate this claim with witness statements or objective evidence.
Finally, the IJ found that Grant was not entitled to relief under the CAT because he had failed to demonstrate that it was more likely than not that he would be tortured by the mafia gang based upon his alleged designation as a "snitch," again due to the speculative and uncorroborated nature of his claims, or by the police based upon his alleged sexual orientation as a bisexual man, due to his incredible and uncorroborated testimony regarding his sexual orientation and his alleged persecution in Jamaica prior to coming to the United States.
The BIA adopted and affirmed the IJ's decision denying Grant's applications for asylum, withholding of removal, and relief under the CAT. Having determined that Grant was properly removable under 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa, the BIA found it unnecessary to address Grant's challenge to the IJ's determination that he was also removable under 8 U.S.C. § 1227(a)(2)(B) based upon his controlled substance offenses. Grant filed a timely petition for review to this court.
We have jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA adopts an IJ's decision and adds analysis of its own, we review both decisions. See Sandie v. Att'y Gen., 562 F.3d 246, 250 (3d Cir. 2009). We review credibility and factual determinations, including whether Grant suffered past persecution or has a well-founded fear of future persecution on account of a protected ground, for substantial evidence. See B.C. v. Att'y Gen., 12 F.4th 306, 313 (3d Cir. 2021). Under this deferential substantial-evidence standard, "we must uphold the agency's determination unless the evidence would compel any reasonable fact finder to reach a contrary result." Gonzalez-Posadas v. Att'y Gen., 781 F.3d 677, 684 n.5 (3d Cir. 2015). The same standard applies to factual challenges to CAT orders. See Nasralla v. Barr, 140 S.Ct. 1683, 1692 (2020). We review legal conclusions de novo. See B.C., 12 F.4th at 313.
The Attorney General may, in his or her discretion, grant asylum to a petitioner who establishes "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(A), (B). To do so, the petitioner may prove past persecution, which creates a rebuttable presumption of future persecution, or a well-founded fear of future persecution, on account of a protected ground. 8 C.F.R. § 1208.13(b). The petitioner's fear of future persecution must be subjectively genuine and objectively reasonable. See Guo v. Ashcroft, 386 F.3d 556, 564-65 (3d Cir. 2004).
A petitioner who seeks asylum based upon membership in a particular social group must establish that the group is "(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." Guzman Orellana v. Att'y Gen., 956 F.3d 171, 178 (3d Cir. 2020) (internal quotation marks omitted). To satisfy the "on account of" or nexus requirement, the applicant must establish that the protected ground "was or will be at least one central reason for his persecution." Id. (internal quotation marks omitted).
Grant's original I-589 application was based upon his claim that he had been designated a "snitch" by Kerron and, as a result, would face persecution by the mafia gang. Grant testified that he heard jailhouse rumors that Kerron had done this because Grant refused to let Kerron off the hook by claiming ownership of the marijuana during the vehicle stop. Grant testified that his family members in Jamaica had also heard rumors that Grant's brother was murdered in May 2019, because of Grant's activities in the United States. At the hearing in July 2020, Grant also claimed, for the first time, that his family informed him that his nephew and aunt had also been recently threatened by anonymous persons.[1]
The IJ found Grant's testimony credible insofar as it related to what his family had told him about his brother's murder in Jamaica and his subjective fear of the mafia gang, but questioned the reliability of Grant's testimony regarding his aunt and nephew because of the belated nature of the claim. In any event, Grant had submitted no corroborating statements from any of his family members in Jamaica regarding his brot...
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