Scarlett v. Barr

• Citation: 957 F.3d 316
• Decision Date: 28 April 2020
• Docket Number: August Term 2019,No. 16-940,16-940
• Parties: Leston Augustus SCARLETT, Petitioner-Appellant, v. William P. BARR, United States Attorney General, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

957 F.3d 316

Leston Augustus SCARLETT, Petitioner-Appellant,

v.William P. BARR, United States Attorney General, Respondent-Appellee.

No. 16-940

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: October 30, 2019

Decided: April 28, 2020

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.

Before: Cabranes and Raggi, Circuit Judges, and Korman, District Judge.^*

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 reasonable fear of future persecution¹ 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), 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.

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 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.

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.

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 with his brother, while his wife and children resided in a different state.

Scarlett...