11-3194
Blackmore v. Holder
BIA
Sagerman, IJ
A031 334 031
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of October, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ____________________________________
12
13 JAN FITZPATRICK BLACKMORE, AKA YAN
14 BLACKMORE,
15 Petitioner,
16
17 v. 11-3194
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Cindy S. Ferrier,
28 Assistant Director; Tracie N. Jones,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Jan Fitzpatrick Blackmore, a native and
10 citizen of Guyana, seeks review of a July 21, 2011, decision
11 of the BIA, affirming Immigration Judge (“IJ”) Roger F.
12 Sagerman’s March 23, 2011, denial of deferral of removal
13 under the Convention Against Torture (“CAT”). In re Jan
14 Fitzpatrick Blackmore, No. A031 334 031 (B.I.A. July 21,
15 2011), aff’g No. A031 334 031 (Immig. Ct. Fishkill Mar. 23,
16 2011). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 both the IJ’s and BIA’s opinions “for the sake of
20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
21 2008)(internal citation and quotation omitted). The
22 applicable standards of review are well-established. See 8
23 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
24 513 (2d Cir. 2009).
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2
1 Assuming that we retain jurisdiction over Blackmore’s
2 challenge to the agency’s denial of deferral of removal
3 under the CAT, he has failed to identify reversible error in
4 the agency’s decision. Even if Blackmore is correct that
5 the agency failed to articulate its basis for finding that
6 Guyana’s law criminalizing homosexuality was a lawful
7 sanction within the meaning of the CAT, we decline to remand
8 because the agency’s finding that Blackmore failed to
9 establish that he would likely be prosecuted under that law,
10 or otherwise tortured, was reasonable. See In re M-B-A-, 23
11 I. & N. Dec. 474, 479-80 (B.I.A. 2002) (noting that a claim
12 “based on a chain of assumptions and a fear of what might
13 happen” is insufficient to demonstrate eligibility for
14 relief under the CAT); see also Cao He Lin v. U.S. Dep’t of
15 Justice, 428 F.3d 391, 401 (2d Cir. 2005) (holding that
16 remand is not required “where there is no realistic
17 possibility that, absent the errors, the IJ or BIA would
18 have reached a different conclusion”).
19 As the IJ determined, much of Blackmore’s evidence
20 describing the treatment of homosexuals in Guyana was out of
21 date at the time of his 2010 merits hearing and the more
22 recent reader submissions to the Stabroek News were entitled
3
1 to diminished evidentiary weight because they contained
2 unsubstantiated assertions by unknown authors. See Xiao Ji
3 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
4 2006) (noting that the weight afforded to an applicant’s
5 evidence lies largely within the discretion of the agency).
6 Further, the agency properly considered whether
7 Blackmore would be prosecuted under Guyana’s law
8 criminalizing homosexuality and did not err in finding that
9 his credible testimony was insufficient to demonstrate his
10 eligibility for relief. See In re M-B-A-, 23 I. & N. Dec.
11 at 479-80; see also Yan Juan Chen v. Holder, 658 F.3d 246,
12 252 (2d Cir. 2011) (“[w]here the trier of fact determines
13 that the applicant should provide evidence that corroborates
14 otherwise credible testimony, such evidence must be provided
15 unless the applicant does not have the evidence and cannot
16 reasonably obtain the evidence”); cf. Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 162 (2d Cir. 2008) (while “credible
18 testimony was sufficient to demonstrate a genuine subjective
19 fear of future persecution, more was needed to demonstrate
20 the objective reasonableness of that fear”). Indeed, as the
21 IJ noted, neither Blackmore nor his mother had recently
22 returned to Guyana and lacked first hand knowledge of
4
1 current country conditions. Moreover, as the government
2 points out, the U.S. Department of State’s 2009 Human Rights
3 Reports on Guyana did not identify any prosecutions under
4 Guyana’s law criminalizing homosexuality, and the evidence
5 in the record reflected only two incidents of individuals
6 being prosecuted under the law, both of which involved
7 minors. These isolated reports involving
8 non-similarly-situated individuals are insufficient to
9 demonstrate eligibility for relief. See Jian Hui Shao, 546
10 F.3d at 160-61, 170-71; see also id. at 155, 172 (finding no
11 error in the BIA’s determination that it could not infer a
12 reasonable possibility of forced sterilization from
13 occasional reports of forced sterilization that lacked
14 detail). As a result, Blackmore has not shown that he would
15 more likely than not be subject to prosecution under the
16 law, or otherwise tortured, if removed to Guyana. Id. & In
17 re M-B-A-, 23 I. & N. Dec. at 479-80.
18 In light of the foregoing and the IJ’s explicit finding
19 that Blackmore failed to show he would likely be arrested on
20 account of his sexual orientation, his argument that the
21 agency failed to consider whether he would be prosecuted
22 under Guyana’s law criminalizing homosexuality is without
23 merit. See Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming
5
1 that the agency “has taken into account all of the evidence
2 before [it], unless the record compellingly suggests
3 otherwise”).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
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