Woolery v. Whitaker

• Court: Court of Appeals for the Second Circuit
• Decided: January 15, 2019
• Docket: 17-1675
• Status: Unpublished

Opinion

17-1675 Woolery v. Whitaker BIA Straus, IJ A077 723 161

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of January, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 SYLVAN JAMES WOOLERY, 14 Petitioner, 15 16 v. 17-1675 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Osakwe, Hartford, CT. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Margaret Kuehne 27 Taylor, Senior Litigation Counsel; 28 Elizabeth K. Fitzgerald-Sambou, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decisions, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Sylvan James Woolery, a native and citizen of

6 Jamaica, seeks review of an April 26, 2017, decision of the

7 BIA affirming the March 9, 2016, decision of an Immigration

8 Judge (“IJ”) denying his application for withholding of

9 removal and relief under the Convention Against Torture

10 (“CAT”). In re Sylvan James Woolery, No. A077 723 161 (B.I.A.

11 Apr. 26, 2017), aff’g No. A077 723 161 (Immig. Ct. Hartford

12 Mar. 9, 2016). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 We have reviewed the IJ’s decision as modified by the

15 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

16 520, 522 (2d Cir. 2005). The only issues before us are

17 whether Woolery established his eligibility for withholding

18 of removal or CAT relief. The applicable standards of review

19 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

20 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). The agency

21 did not err in finding that Woolery failed to establish his

22 eligibility for withholding of removal or CAT relief based on

2 1 his claim that he was shot in Jamaica in 1992 and that he

2 fears gang violence in that country.

3 To establish eligibility for withholding of removal, an

4 applicant must show that any harm suffered was on account “of

5 the [applicant’s] race, religion, nationality, membership in

6 a particular social group, or political opinion.” 8 U.S.C.

7 § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(1)(i). We treat

8 Woolery’s claim that he established his membership in a

9 particular social group as exhausted. See Gill v. INS, 420

10 F.3d 82, 86 (2d Cir. 2005) (“[W]e have never held that a

11 petitioner is limited to the exact contours of his argument

12 below.”). Nevertheless, Woolery did not provide any details

13 regarding his group membership and he did not know who shot

14 him or why. Accordingly, the agency did not err in finding

15 that he failed to establish that he suffered past persecution

16 on account of his membership in a particular social group or

17 any other protected ground. See 8 U.S.C. § 1231(b)(3)(A);

18 see also In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA

19 2007); cf. Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.

20 2007) (“When the harm visited upon members of a group is

21 attributable to the incentives presented to ordinary

22 criminals rather than to persecution, the scales are tipped

3 1 away from considering those people a ‘particular social

2 group’ . . . .”).

3 The agency also did not err in finding that Woolery

4 failed to demonstrate a likelihood of persecution or torture

5 so as to establish his eligibility for withholding of removal

6 and CAT relief. See 8 C.F.R. § 1208.16(b)(2), (c)(2). He

7 did not identify any individual or group interested in

8 targeting him in Jamaica. See id.; see also Jian Xing Huang

9 v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of

10 solid support in the record . . . , [an applicant’s] fear is

11 speculative at best”). Insofar as Woolery fears general

12 violence in Jamaica, such conditions, while unfortunate, are

13 insufficient to satisfy his burden for withholding of removal

14 or CAT relief. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130,

15 144 (2d Cir. 2003) (holding that beyond general country

16 conditions evidence demonstrating incidents of torture in a

17 country, an applicant for CAT relief must provide some

18 evidence “that someone in his particular alleged

19 circumstances is more likely than not to be tortured.”

20 emphasis omitted)); Melgar de Torres v. Reno, 191 F.3d 307,

21 314 n.3 (2d Cir. 1999) (noting that general violence does not

4 1 establish a well-founded fear of persecution absent evidence

2 showing a particular risk to the applicant).

3 For the foregoing reasons, the petition for review is

4 DENIED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe 7 Clerk of Court