17-2875 Ricketts v. Barr BIA Wilson, IJ A061 134 923 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of June, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, DENNY CHIN, Circuit Judges. _____________________________________
EMRON FITZROY RICKETTS, Petitioner,
v. 17-2875 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Abdolreza Mazaheri, Sethi & Mazaheri, LLC, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Ashley Y. Martin, Trial Attorney; Sarah George, Law Clerk, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Petitioner Emron Fitzroy Ricketts, a native and citizen
of Jamaica, seeks review of an August 16, 2017 decision of
the BIA affirming a December 19, 2016 decision of an
Immigration Judge (“IJ”) denying his application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Emron Fitzroy Ricketts, No.
A061-134-923 (B.I.A. Aug. 16, 2017), aff’g No. A 061-134-923
(Immig. Ct. N.Y. City Dec. 19, 2016). We assume the parties’
familiarity with the underlying facts, the procedural history
in this case, and the issues on appeal.
We have considered the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). Our jurisdiction to review a final order of
removal of a person, like Ricketts, who is removable for an
2 aggravated felony, is limited to constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
I. Withholding of Removal
To demonstrate eligibility for withholding of removal,
Ricketts must “establish that race, religion, nationality,
membership in a particular social group, or political opinion
was or w[ould] be at least one central reason for” his
persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also
id. § 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341,
348 (B.I.A. 2010) (applying “one central reason” standard to
withholding of removal). Ricketts here claims withholding of
removal based on his membership in a particular social group,
which he defines as “police informants.” The agency concluded
that Ricketts did not qualify for withholding of removal for
two reasons. First, the agency held that this social group
was not sufficiently particular or socially distinct. See
Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014)(“[W]hat
matters is whether society as a whole views a group as
socially distinct, not the persecutor’s perception.”).
Second, the agency held that even if the group were
sufficiently particular or socially distinct, Ricketts failed
to establish that the Jamaican government would be unwilling
3 or unable to protect him. Ricketts now challenges both
conclusions.
According to Ricketts, the agency incorrectly concluded
that his proposed social group of police informants was not
sufficiently particular or socially distinct. But even
assuming that was error, Ricketts’s petition must still be
denied because he does not raise any colorable constitutional
challenges or questions of law concerning the agency’s
alternative factual finding that he did not show that the
government would be unwilling or unable to protect him.
Ricketts argues that the IJ erred by holding that his credible
testimony is insufficient to establish that the Jamaican
government could not protect him from persecution. But in
fact, the agency did not hold as a matter of law that credible
testimony cannot suffice on this score; it held that
Ricketts’s testimony was unpersuasive because, among other
things, he also testified that he had never reported any
threats to Jamaican law enforcement and that the police were
already targeting one of the men against whom he had worked
as an informant.
Accordingly, we dismiss Ricketts’s petition as to
withholding of removal, denying as moot his challenge to the
4 agency’s legal conclusion that he had not established a valid
particular social group.
II. Convention Against Torture
Our review of the agency’s denial of CAT relief is
limited to constitutional claims and questions of law. See
8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782
F.3d 81, 86 (2d Cir. 2015). For jurisdiction to attach, the
constitutional claim or question of law must be colorable.
See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir.
2008). To receive protection under the CAT, an applicant must
“establish that it is more likely than not that he . . . would
be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). “Torture is defined as any act by
which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person . . . at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id.
§ 1208.18(a)(1); see also Khouzam v. Ashcroft, 361 F.3d 161,
171 (2d Cir. 2004).
Ricketts claims that he would be tortured (1) by the
Grant family because he provided information to law
enforcement about them and (2) by the Jamaican police because
5 he was a criminal deportee. But the IJ did not overlook
relevant evidence or otherwise commit legal error in
determining that Ricketts had not established a likelihood of
torture by or with the acquiescence of Jamaican officials.
See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009)
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17-2875 Ricketts v. Barr BIA Wilson, IJ A061 134 923 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of June, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, DENNY CHIN, Circuit Judges. _____________________________________
EMRON FITZROY RICKETTS, Petitioner,
v. 17-2875 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Abdolreza Mazaheri, Sethi & Mazaheri, LLC, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Ashley Y. Martin, Trial Attorney; Sarah George, Law Clerk, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Petitioner Emron Fitzroy Ricketts, a native and citizen
of Jamaica, seeks review of an August 16, 2017 decision of
the BIA affirming a December 19, 2016 decision of an
Immigration Judge (“IJ”) denying his application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Emron Fitzroy Ricketts, No.
A061-134-923 (B.I.A. Aug. 16, 2017), aff’g No. A 061-134-923
(Immig. Ct. N.Y. City Dec. 19, 2016). We assume the parties’
familiarity with the underlying facts, the procedural history
in this case, and the issues on appeal.
We have considered the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). Our jurisdiction to review a final order of
removal of a person, like Ricketts, who is removable for an
2 aggravated felony, is limited to constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
I. Withholding of Removal
To demonstrate eligibility for withholding of removal,
Ricketts must “establish that race, religion, nationality,
membership in a particular social group, or political opinion
was or w[ould] be at least one central reason for” his
persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also
id. § 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341,
348 (B.I.A. 2010) (applying “one central reason” standard to
withholding of removal). Ricketts here claims withholding of
removal based on his membership in a particular social group,
which he defines as “police informants.” The agency concluded
that Ricketts did not qualify for withholding of removal for
two reasons. First, the agency held that this social group
was not sufficiently particular or socially distinct. See
Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014)(“[W]hat
matters is whether society as a whole views a group as
socially distinct, not the persecutor’s perception.”).
Second, the agency held that even if the group were
sufficiently particular or socially distinct, Ricketts failed
to establish that the Jamaican government would be unwilling
3 or unable to protect him. Ricketts now challenges both
conclusions.
According to Ricketts, the agency incorrectly concluded
that his proposed social group of police informants was not
sufficiently particular or socially distinct. But even
assuming that was error, Ricketts’s petition must still be
denied because he does not raise any colorable constitutional
challenges or questions of law concerning the agency’s
alternative factual finding that he did not show that the
government would be unwilling or unable to protect him.
Ricketts argues that the IJ erred by holding that his credible
testimony is insufficient to establish that the Jamaican
government could not protect him from persecution. But in
fact, the agency did not hold as a matter of law that credible
testimony cannot suffice on this score; it held that
Ricketts’s testimony was unpersuasive because, among other
things, he also testified that he had never reported any
threats to Jamaican law enforcement and that the police were
already targeting one of the men against whom he had worked
as an informant.
Accordingly, we dismiss Ricketts’s petition as to
withholding of removal, denying as moot his challenge to the
4 agency’s legal conclusion that he had not established a valid
particular social group.
II. Convention Against Torture
Our review of the agency’s denial of CAT relief is
limited to constitutional claims and questions of law. See
8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782
F.3d 81, 86 (2d Cir. 2015). For jurisdiction to attach, the
constitutional claim or question of law must be colorable.
See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir.
2008). To receive protection under the CAT, an applicant must
“establish that it is more likely than not that he . . . would
be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). “Torture is defined as any act by
which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person . . . at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id.
§ 1208.18(a)(1); see also Khouzam v. Ashcroft, 361 F.3d 161,
171 (2d Cir. 2004).
Ricketts claims that he would be tortured (1) by the
Grant family because he provided information to law
enforcement about them and (2) by the Jamaican police because
5 he was a criminal deportee. But the IJ did not overlook
relevant evidence or otherwise commit legal error in
determining that Ricketts had not established a likelihood of
torture by or with the acquiescence of Jamaican officials.
See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009)
(although the agency may commit an error of law if it “totally
overlook[s]” or “seriously mischaracterize[s]” evidence, it
“does not commit an ‘error of law’ every time an item of
evidence is not explicitly considered or is described with
imperfect accuracy”). The agency considered Ricketts’s
testimony and the country conditions evidence in the record
and was not required to parse each piece of evidence. See
Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (the agency
is not required to “expressly parse or refute on the record
each individual argument or piece of evidence offered”); see
also Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17
(2d Cir. 2006) (“[W]e presume that an IJ has taken into
account all of the evidence before him, unless the record
compellingly suggests otherwise.”). Record evidence also
supports the IJ’s findings that the Jamaican government would
not turn a blind eye to any harm he may experience given its
investigation of one of his purported persecutors and the
6 lack of objective evidence that the police torture criminal
deportees.
Ricketts further argues that the IJ applied the incorrect
standard of government acquiescence when he concluded that
Ricketts “bears the burden of showing that the government
will engage in torture if he were to go back to Jamaica.” CAR
at 90. But the IJ applied this standard only in assessing
Ricketts’s claim that the police would torture him for being
a criminal deportee. When reviewing whether the police would
turn a blind eye to any harm from the Grant family, the IJ
applied the correct standard: that a CAT applicant “must show
that he would be subject to torture by or at the instigation
of or with the consent or acquiescence of a public official
or person acting in an official capacity.” Id. at 83.
Ricketts’s final contention that, contra the IJ’s
determination that he could locate within Jamaica, the Grants
could harm him anywhere in Jamaica is a factual dispute that
we do not have jurisdiction to review. See 8 U.S.C.
§ 1252(a)(2)(C), (D); Huang v. Holder, 677 F.3d 130, 134 (2d
Cir. 2012) (holding that the likelihood of future events is
a factual determination). Ricketts has therefore failed to
identify questions of law related to his CAT claim, and we
7 have no jurisdiction to further review the agency’s CAT
determination. See 8 U.S.C. § 1252(a)(2)(C), (D).
III. Conclusion
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court