Scarlett v. Barr
957 F.3d 316
2d Cir.2020Background
- Petitioner Leston Scarlett, a former 15‑year Jamaican police officer, alleges threats from a corrupt supervisor (Supt. Hewitt) after refusing a contract murder and later threats from JLP‑affiliated gangs after on‑duty actions (seizing guns; killing a gang leader).
- Scarlett was transferred away from Hewitt; later, after transfer to Bog Walk, police intelligence warned him of imminent gang plans (kidnap daughter, burn home); police allegedly provided only a transfer and warnings and told him he was "on [his] own."
- Scarlett obtained permission to leave Jamaica in mid‑2010, entered the U.S. on a B‑2 visa on July 9, 2010, overstayed, and did not file a timely asylum application while his visa remained valid.
- DHS charged removability in 2014; Scarlett conceded removability and applied for asylum, withholding of removal, and CAT protection. The IJ denied asylum as untimely and denied withholding and CAT relief.
- The BIA denied Scarlett’s motion to reopen (ineffective assistance of counsel/asylum timeliness), agreed that police‑supervisor threats did not amount to persecution/torture, but remanded to the IJ to consider whether gang threats might be on account of a protected ground and whether Jamaican authorities were unwilling or unable to protect him.
- The Second Circuit affirmed the denial of reopening and the denials as to police supervisors, but vacated and remanded the withholding and CAT denials insofar as they rested on gang violence for lack of reasoned consideration and to permit application of Matter of A‑B‑ by the agency on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Motion to reopen (ineffective assistance / asylum timeliness) | Scarlett: former counsel failed to show extraordinary circumstances to excuse 1‑year filing and thus reopening should be granted | DHS/BIA: Scarlett failed Lozada‑style showings of prejudice and due diligence; omitted evidence was duplicative or uncorroborated | Denied — BIA did not abuse discretion; Scarlett failed to show prejudice or diligence |
| 2) Withholding/CAT based on threats from former police supervisors | Scarlett: supervisors threatened/persecuted him for refusing illegal orders and imputing political views | DHS/BIA: threats were verbal/surveillance, not past persecution; transfer relieved danger and no objective risk of future persecution | Affirmed — substantial evidence supports finding no past persecution or likelihood of future persecution/torture by supervisors |
| 3) Withholding based on gang violence (unwilling-or-unable) | Scarlett: gangs threatened him for imputed political opinion/membership in particular social group; Jamaican authorities lacked resources/ability to protect him | DHS/BIA: police warned him and offered transfer; thus government was willing and able to protect him | Vacated & remanded — agency failed to address all relevant evidence (post‑transfer threats, family hiding, limited assistance) and must apply Matter of A‑B‑ on remand |
| 4) CAT relief re: gang torture (government acquiescence) | Scarlett: police knowledge and ineffective protection/evidence of inability amount to acquiescence | DHS/BIA: warnings and transfer show no acquiescence; no evidence police would acquiesce in torture | Vacated & remanded — agency did not analyze legal responsibility to protect or how inability bears on acquiescence; remand appropriate for agency determination |
Key Cases Cited
- Negusie v. Holder, 555 U.S. 511 (Chevron deference to Attorney General interpretations in immigration law)
- INS v. Aguirre‑Aguirre, 526 U.S. 415 (deference appropriate where Executive interprets immigration statutes implicating foreign affairs)
- Rabiu v. INS, 41 F.3d 879 (prejudice standard for ineffective assistance in immigration context)
- INS v. Cardoza‑Fonseca, 480 U.S. 421 (standard for withholding: "more likely than not" risk of persecution)
- Galina v. INS, 213 F.3d 955 (government "complete helplessness" language regarding private‑actor violence attributed to state)
- Gonzales‑Veliz v. Barr, 938 F.3d 219 (upholding Attorney General’s clarification in Matter of A‑B‑ re: unwilling/unable standard)
- De La Rosa v. Holder, 598 F.3d 103 (acquiescence and government complicity may support CAT even when some officials attempt protection)
- Khouzam v. Ashcroft, 361 F.3d 161 (definition of government acquiescence for CAT)